<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON _____________ __, 1997
REGISTRATION NO.333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------
<TABLE>
<S> <C>
NORTH FORK BANCORPORATION, INC. NORTH FORK CAPITAL TRUST I
(Exact name of Registrant as specified in its (Exact name of Registrant as specified
charter) in its trust agreement)
DELAWARE DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
--------- ---------
6712 6719
(Primary Standard Industrial (Primary Standard Industrial
Classification Code Number) Classification Code Number)
11-1353410 11-3355569
(I.R.S. Employer (I.R.S. Employer
Identification No.) Identification No.)
</TABLE>
-------------------------
275 BROAD HOLLOW ROAD
MELVILLE, NEW YORK 11747
(516) 298-5000
(Address, including zip code, and telephone number, including area code, of
Registrants' principal executive offices)
-------------------------
<TABLE>
<S> <C>
JOHN A. KANAS DANIEL M. HEALY
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER EXECUTIVE VICE PRESIDENT
NORTH FORK BANCORPORATION, INC. AND CHIEF FINANCIAL OFFICER
275 BROAD HOLLOW ROAD NORTH FORK BANCORPORATION, INC.
MELVILLE, NEW YORK 11747 275 BROAD HOLLOW ROAD
(516) 844-1256 MELVILLE, NEW YORK 11747
(516) 844-1258
</TABLE>
(Name, address, including zip code, and telephone number, including area code,
of agents for service)
-------------------------
COPIES TO:
VINCENT J. PISANO, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
Approximate Date of Commencement of Proposed Sale to the Public:
As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be
offered in connection with the formation of a holding company and there is
compliance with General Instruction G, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE(2)
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Exchange Capital Trust Pass-through
Securities of North Fork Capital Trust I.. $100,000,000 100% $100,000,000 $30,303.03
- ----------------------------------------------------------------------------------------------------------------------
Exchange Junior Subordinated Debt
Securities of North Fork Bancorporation,
Inc.(2)...................................
- ----------------------------------------------------------------------------------------------------------------------
North Fork Bancorporation, Inc. Exchange
Guarantee with respect to Exchange
Capital Trust Pass-through Securities(3)..
- ----------------------------------------------------------------------------------------------------------------------
Total(4).............................. $100,000,000(5) 100% $100,000,000(5) $30,303.03
======================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee.
(2) No separate consideration will be received for the Exchange Junior
Subordinated Debt Securities of North Fork Bancorporation, Inc. (the
"Exchange Junior Subordinated Debt Securities") distributed upon any
liquidation of North Fork Capital Trust I.
(3) No separate consideration will be received for the North Fork
Bancorporation, Inc. Exchange Guarantee.
(4) This Registration Statement is deemed to cover rights of holders of
Exchange Junior Subordinated Debt Securities under the Indenture, the
rights of holders of Exchange Capital Trust Pass-through Securities of
North Fork Capital Trust I under an Amended and Restated Declaration
of Trust, the rights of holders of such Capital Securities under the
Exchange Guarantee and certain backup undertakings as described
herein.
(5) Such amount represents the liquidation amount of the North Fork
Capital Trust I Exchange Capital Trust Pass-through Securities to be
exchanged hereunder and the principal amount of Exchange Junior
Subordinated Debt Securities that may be distributed to holders of
such Capital Securities upon any liquidation of North Fork Capital
Trust I.
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
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH
STATE.
SUBJECT TO COMPLETION, DATED ______________ __, 1997
NORTH FORK CAPITAL TRUST I
OFFER TO EXCHANGE ITS
8.70% EXCHANGE CAPITAL TRUST PASS-THROUGH SECURITIES
(LIQUIDATION AMOUNT $1,000 PER EXCHANGE CAPITAL SECURITY)
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING
8.70% ORIGINAL CAPITAL TRUST PASS-THROUGH SECURITIES
(LIQUIDATION AMOUNT $1,000 PER ORIGINAL CAPITAL SECURITY)
UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
NORTH FORK BANCORPORATION, INC.
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON , 1997, UNLESS EXTENDED
---------------
NORTH FORK CAPITAL TRUST I, A TRUST FORMED UNDER THE LAWS OF THE STATE
OF DELAWARE (THE "TRUST"), HEREBY OFFERS, UPON THE TERMS AND SUBJECT TO THE
CONDITIONS SET FORTH IN THIS PROSPECTUS (AS THE SAME MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME, THE "PROSPECTUS") AND IN THE ACCOMPANYING
LETTER OF TRANSMITTAL (WHICH TOGETHER CONSTITUTE THE "EXCHANGE OFFER"), TO
EXCHANGE UP TO $100,000,000 AGGREGATE LIQUIDATION AMOUNT OF ITS 8.70% EXCHANGE
CAPITAL TRUST PASS-THROUGH SECURITIES (THE "EXCHANGE CAPITAL SECURITIES")
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), PURSUANT TO A REGISTRATION STATEMENT (AS DEFINED HEREIN) OF
WHICH THIS PROSPECTUS CONSTITUTES A PART, FOR A LIKE LIQUIDATION AMOUNT OF ITS
OUTSTANDING 8.70% CAPITAL TRUST PASS- THROUGH SECURITIES (THE "ORIGINAL CAPITAL
SECURITIES"), OF WHICH $100,000,000 AGGREGATE LIQUIDATION AMOUNT IS
OUTSTANDING. PURSUANT TO THE EXCHANGE OFFER, NORTH FORK BANCORPORATION, INC.,
A DELAWARE CORPORATION (THE "CORPORATION" OR "NORTH FORK"), IS ALSO OFFERING TO
EXCHANGE (I) ITS GUARANTEE OF PAYMENTS OF CASH DISTRIBUTIONS AND PAYMENTS ON
LIQUIDATION OF THE TRUST OR REDEMPTION OF THE ORIGINAL CAPITAL SECURITIES (THE
"ORIGINAL GUARANTEE") FOR A LIKE GUARANTEE IN RESPECT OF THE EXCHANGE CAPITAL
SECURITIES (THE "EXCHANGE GUARANTEE") AND (II) $100,000,000 AGGREGATE PRINCIPAL
AMOUNT OF ITS 8.70% JUNIOR SUBORDINATED DEBT SECURITIES DUE DECEMBER 15, 2026
(THE "ORIGINAL JUNIOR SUBORDINATED DEBT SECURITIES") FOR A LIKE AGGREGATE
PRINCIPAL AMOUNT OF ITS 8.70% EXCHANGE JUNIOR SUBORDINATED DEBT SECURITIES DUE
DECEMBER 15, 2026 (THE "EXCHANGE JUNIOR SUBORDINATED DEBT SECURITIES"), WHICH
EXCHANGE GUARANTEE AND EXCHANGE JUNIOR SUBORDINATED DEBT SECURITIES ALSO HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT. THE ORIGINAL CAPITAL SECURITIES, THE
ORIGINAL GUARANTEE AND THE ORIGINAL JUNIOR SUBORDINATED DEBT SECURITIES ARE
COLLECTIVELY REFERRED TO HEREIN AS THE "ORIGINAL SECURITIES" AND THE EXCHANGE
CAPITAL SECURITIES, THE EXCHANGE GUARANTEE AND THE EXCHANGE JUNIOR SUBORDINATED
DEBT SECURITIES ARE COLLECTIVELY REFERRED TO HEREIN AS THE "EXCHANGE
SECURITIES."
THE TERMS OF THE EXCHANGE SECURITIES ARE IDENTICAL IN ALL MATERIAL
RESPECTS TO THE RESPECTIVE TERMS OF THE ORIGINAL SECURITIES, EXCEPT THAT (1) THE
EXCHANGE SECURITIES HAVE BEEN REGISTERED UNDER THE SECURITIES ACT AND THEREFORE
WILL NOT BE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER APPLICABLE TO THE
ORIGINAL SECURITIES, (2) THE EXCHANGE CAPITAL SECURITIES WILL NOT PROVIDE FOR
ANY INCREASE IN THE DISTRIBUTION RATE THEREON AND (3) THE EXCHANGE JUNIOR
SUBORDINATED DEBT SECURITIES WILL NOT PROVIDE FOR ANY LIQUIDATED DAMAGES
THEREON. SEE "DESCRIPTION OF EXCHANGE SECURITIES" AND "DESCRIPTION OF ORIGINAL
SECURITIES." THE EXCHANGE CAPITAL SECURITIES ARE BEING OFFERED FOR EXCHANGE IN
ORDER TO SATISFY CERTAIN OBLIGATIONS OF THE CORPORATION AND THE TRUST UNDER THE
REGISTRATION AGREEMENT DATED AS OF DECEMBER 31, 1996 (THE "REGISTRATION
AGREEMENT") AMONG THE CORPORATION, THE TRUST AND THE INITIAL PURCHASERS (AS
DEFINED HEREIN). IN THE EVENT THAT THE EXCHANGE OFFER IS CONSUMMATED, ANY
ORIGINAL CAPITAL SECURITIES WHICH REMAIN OUTSTANDING AFTER CONSUMMATION OF THE
EXCHANGE OFFER AND THE EXCHANGE CAPITAL SECURITIES ISSUED IN THE EXCHANGE OFFER
WILL VOTE TOGETHER AS A SINGLE CLASS FOR PURPOSES OF DETERMINING WHETHER HOLDERS
OF THE REQUISITE PERCENTAGE IN OUTSTANDING LIQUIDATION AMOUNT THEREOF HAVE TAKEN
CERTAIN ACTIONS OR EXERCISED CERTAIN RIGHTS UNDER THE DECLARATION. (CONTINUED ON
THE FOLLOWING PAGE)
THIS PROSPECTUS AND THE LETTER OF TRANSMITTAL ARE FIRST BEING MAILED
TO ALL HOLDERS OF ORIGINAL CAPITAL SECURITIES ON , 1997.
SEE "RISK FACTORS" COMMENCING ON PAGE 18 FOR CERTAIN INFORMATION THAT
SHOULD BE CONSIDERED BY HOLDERS IN DECIDING WHETHER TO TENDER ORIGINAL CAPITAL
SECURITIES IN THE EXCHANGE OFFER.
<PAGE> 3
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 AD-
EQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is _________ __, 1997.
<PAGE> 4
(Continued from the previous page)
The Exchange Capital Securities and the Original Capital Securities
(collectively, the "Capital Securities") represent beneficial interests in the
assets of the Trust. The Corporation is the owner of all of the beneficial
interests represented by common securities of the Trust (the "Common
Securities," and together with the Capital Securities, the "Trust Securities").
Bankers Trust Company is the Property Trustee of the Trust. The Trust exists
for the sole purpose of issuing the Trust Securities and investing the proceeds
thereof in the Junior Subordinated Debt Securities (as defined herein). The
Junior Subordinated Debt Securities will mature on December 15, 2026 (the
"Stated Maturity"). The Capital Securities will have a preference over the
Common Securities under certain circumstances with respect to cash
distributions and amounts payable on liquidation, redemption or otherwise. See
"Description of Exchange Securities--Description of Exchange Capital
Securities--Subordination of Common Securities."
As used herein, (i) the "Indenture" means the Indenture, dated as of
December 31, 1996, as amended and supplemented, between the Corporation and
Bankers Trust Company, as Debenture Trustee (the "Debenture Trustee"), and (ii)
the "Declaration" means the Amended and Restated Declaration of Trust relating
to the Trust among the Corporation, as Sponsor, Bankers Trust Company as
Property Trustee (the "Property Trustee"), Bankers Trust Company (Delaware) as
Delaware Trustee (the "Delaware Trustee"), and the Administrative Trustees
named therein (collectively, with the Property Trustee and Delaware Trustee,
the "Issuer Trustees"). In addition, as the context may require, (i) the term
"Junior Subordinated Debt Securities" includes the Original Junior Subordinated
Debt Securities and the Exchange Junior Subordinated Debt Securities and (ii)
the term "Guarantee" includes the Original Guarantee and the Exchange
Guarantee.
Holders of the Trust Securities will be entitled to receive
cumulative cash distributions arising from the payment of interest on the
Junior Subordinated Debt Securities accruing from December 31, 1996 and
payable semi-annually in arrears on the 15th day of June and December of each
year, commencing June 15, 1997, at the annual rate of 8.70% of the Liquidation
Amount of $1,000 per Exchange Capital Security and at the annual rate of 8.70%
of the Liquidation Amount of $1,000 per Exchange Common Security
("Distributions"). Subject to certain exceptions, the Corporation has the
right to defer payments of interest on the Junior Subordinated Debt Securities
at any time or from time to time for a period not exceeding 10 consecutive
semi-annual periods with respect to each deferral period (each, an "Extension
Period"); provided, however, that no Extension Period may extend beyond the
Stated Maturity of the Junior Subordinated Debt Securities. Upon the
termination of any Extension Period and the payment of all interest then
accrued and unpaid (together with interest thereon at the rate of 8.70%,
compounded semi-annually, to the extent permitted by applicable law), the
Corporation may elect to begin a new Extension Period, subject to the
requirements set forth herein. If interest payments on the Junior Subordinated
Debt Securities are so deferred, during any Extension Period, Distributions on
the Trust Securities will also be deferred and the Corporation will not be
permitted, subject to certain exceptions described herein, to declare or pay
any cash distributions with respect to the Corporation's capital stock (which
includes common and preferred stock) or to make any payment with respect to
debt securities of the Corporation that rank pari passu in all respects with
or junior to the Junior Subordinated Debt Securities. During an Extension
Period, interest on the Junior Subordinated Debt Securities will continue to
accrue (and the amount of Distributions to which holders of the Trust
Securities are entitled will accumulate) at the rate of 8.70% per annum,
compounded semi-annually, and holders of Trust Securities will be required to
accrue interest income for United States Federal income tax purposes. See
"Description of Exchange Securities--Description of Exchange Junior
Subordinated Debt Securities--Option to Extend Interest Payment Date" and
"Certain United States Federal Income Tax Consequences--Interest Income and
Original Issue Discount."
The Corporation has, through the Guarantee, the Declaration, the
Junior Subordinated Debt Securities and the Indenture (each as defined
herein), taken together, fully, irrevocably and unconditionally guaranteed, as
described herein, all of the Trust's obligations under the Capital Securities.
See "Relationship Among the Exchange Capital Securities, the Exchange Junior
Subordinated Debt Securities and the Exchange Guarantee--Full and
Unconditional Guarantee." Pursuant to the Exchange Guarantee, the Corporation
will guarantee the payment of Distributions and payments on liquidation or
redemption of the Exchange Capital Securities, but only in each case to the
extent of funds held by the Trust, as described herein. See "Description of
Exchange Securities--Description of Exchange Guarantee." If the Corporation
does not make interest payments on the Junior Subordinated Debt Securities
held by the Trust, the Trust will have insufficient funds to pay Distributions
on the Capital Securities. The Guarantee does not cover the payment of
Distributions when the Trust does not have sufficient funds to pay such
Distributions. In such event, a holder of Capital Securities may institute a
legal proceeding directly against the Corporation for enforcement of payment
to such holder of the principal of or interest on Junior Subordinated Debt
Securities having a principal amount equal to the aggregate Liquidation Amount
of the Capital Securities held by such holder (a "Direct Action"). See
"Description of Exchange Securities--Description of Exchange Junior
Subordinated Debt Securities--Enforcement of Certain Rights by Holders of
Exchange Capital Securities." The obligations of the Corporation under the
Guarantee and the Junior Subordinated Debt Securities are subordinate and
junior
4
<PAGE> 5
(Continued from the previous page)
in right of payment to all Senior Debt (as defined in "Description of Exchange
Securities--Description of Exchange Junior Subordinated Debt
Securities--Subordination") of the Corporation. In addition, because the
Corporation is a holding company, the Junior Subordinated Debt Securities and
the Guarantee are effectively subordinated to all existing and future
liabilities of the Corporation's subsidiaries, including deposits.
The Trust Securities will be subject to mandatory redemption (i) in
whole, but not in part, at the Stated Maturity of the Junior Subordinated Debt
Securities upon the redemption thereof at a redemption price equal to the
principal amount of, plus accrued interest on, the Junior Subordinated Debt
Securities (the "Maturity Redemption Price"), (ii) in whole, but not in part,
at any time prior to December 15, 2006, contemporaneously with the optional
redemption of the Junior Subordinated Debt Securities, upon the occurrence and
continuation of a Special Event (as defined herein) at a redemption price
equal to the Special Event Prepayment Price (as defined herein) (the "Special
Event Redemption Price"), and (iii) in whole or in part on or after December
15, 2006 contemporaneously with any optional redemption by the Corporation of
Junior Subordinated Debt Securities at a redemption price (the "Optional
Redemption Price") equal to the Optional Prepayment Price (as defined below).
Any of the Maturity Redemption Price, the Special Event Redemption Price or
the Optional Redemption Price may be referred to herein as the "Redemption
Price." See "Description of Exchange Securities--Description of Exchange
Capital Securities--Mandatory Redemption." Subject to the Corporation having
received prior approval of the Board of Governors of the Federal Reserve
System (the "Federal Reserve") to do so if then required under applicable
capital guidelines or policies of the Federal Reserve, the Junior Subordinated
Debt Securities are redeemable prior to the Stated Maturity (i) at the option
of the Corporation on or after December 15, 2006, in whole or in part at any
time at a redemption price (the "Optional Prepayment Price") equal to 104.17%
of the principal amount thereof on December 15, 2006 declining ratably on each
December 15 thereafter to 100% on or after December 15, 2016, plus accrued and
unpaid interest thereon to the date of redemption or (ii) at any time prior to
December 15, 2006, in whole but not in part, upon the occurrence and
continuation of a Special Event, at a redemption price (the "Special Event
Prepayment Price" equal to the greater of (a) 100% of the principal amount
thereof or (b) the sum, as determined by a Quotation Agent (as defined
herein), of the present values of the principal amount and premium payable as
part of the prepayment price with respect to an optional redemption of such
Junior Subordinated Debt Securities on December 15, 2006, together with
scheduled payments of interest accruing from the redemption date to December
15, 2006, in each case, discounted to the redemption date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate (as defined herein), plus accrued but unpaid interest
thereon to the date of redemption. See "Description of Exchange
Securities--Description of Exchange Junior Subordinated Debt
Securities--Optional Redemption" and "--Special Event Prepayment."
The Corporation, as the holder of the outstanding Common Securities,
has the right at any time (including, without limitation, upon the occurrence
of a Tax Event (as defined herein)) to terminate the Trust and cause a Like
Amount (as defined herein) of the Junior Subordinated Debt Securities to be
distributed to the holders of the Trust Securities upon liquidation of the
Trust, subject to prior approval of the Federal Reserve to do so if then
required under applicable capital guidelines or policies of the Federal
Reserve. In the event of such termination of the Trust, after satisfaction of
liabilities to creditors of the Trust as required by applicable law, the
holders of the Capital Securities generally will be entitled to receive a
Liquidation Amount of $1,000 per Capital Security plus accumulated and unpaid
Distributions thereon to the date of payment, which shall be in the form of a
distribution of a Like Amount of Junior Subordinated Debt Securities, subject
to certain exceptions. See "Description of Exchange Securities--Description of
Exchange Capital Securities--Liquidation of the Trust and Distribution of
Junior Subordinated Debt Securities."
The Capital Securities will be issued, and may be transferred, only in
block having a Liquidation Value of not less than $100,000 (100 Capital
Securities)
-----------------
The Trust is making the Exchange Offer of the Exchange Capital
Securities in reliance on the position of the staff of the Division of
Corporation Finance of the Securities and Exchange Commission (the
"Commission") as set forth in certain interpretive letters addressed to third
parties in other transactions. However, neither the Corporation nor the Trust
has sought its own interpretive letter and there can be no assurance that the
staff of the Division of Corporation Finance of the Commission would make a
similar determination with respect to the Exchange Offer as it has in such
interpretive letters to third parties. Based on these interpretations by the
staff of the Division of Corporation Finance of the Commission, and subject to
the two immediately following sentences, the Corporation and the Trust believe
that Exchange Capital Securities issued pursuant to this Exchange Offer in
exchange for Original Capital Securities may be offered for resale, resold and
otherwise transferred by a holder thereof (other than a holder who is a
broker-dealer) without further compliance with the registration and prospectus
delivery requirements of the Securities Act, provided that such Exchange
Capital Securities are acquired in the ordinary course of such holder's
business and that such holder is not participating, and has no arrangement or
understanding with any person to participate, in a distribution (within the
meaning of the
5
<PAGE> 6
(Continued from the previous page)
Securities Act) of such Exchange Capital Securities. However, any holder of
Original Capital Securities who is an "affiliate" of the Corporation or the
Trust or who intends to participate in the Exchange Offer for the purpose of
distributing Exchange Capital Securities, or any broker-dealer who purchased
Original Capital Securities from the Trust to resell pursuant to Rule 144A
under the Securities Act ("Rule 144A") or any other available exemption under
the Securities Act, (a) will not be able to rely on the interpretations of the
staff of the Division of Corporation Finance of the Commission set forth in
the above-mentioned interpretive letters, (b) will not be permitted or
entitled to tender such Original Capital Securities in the Exchange Offer and
(c) must comply with the registration and prospectus delivery requirements of
the Securities Act in connection with any sale or other transfer of such
Original Capital Securities unless such sale is made pursuant to an exemption
from such requirements. In addition, as described below, if any broker-dealer
holds Original Capital Securities acquired for its own account as a result of
market-making or other trading activities and exchanges such Original Capital
Securities for Exchange Capital Securities, then such broker-dealer must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resales of such Exchange Capital Securities.
Each holder of Original Capital Securities who wishes to exchange
Original Capital Securities for Exchange Capital Securities in the Exchange
Offer will be required to represent that (i) it is not an "affiliate" of the
Corporation or the Trust, (ii) any Exchange Capital Securities to be received by
it are being acquired in the ordinary course of its business, (iii) it has no
arrangement or understanding with any person to participate in a distribution
(within the meaning of the Securities Act) of such Exchange Capital Securities,
and (iv) if such holder is not a broker-dealer, such holder is not engaged in,
and does not intend to engage in, a distribution (within the meaning of the
Securities Act) of such Exchange Capital Securities. In addition, the
Corporation and the Trust may require such holder, as a condition to such
holder's eligibility to participate in the Exchange Offer, to furnish to the
Corporation and the Trust (or an agent thereof) in writing information as to the
number of "beneficial owners" (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) on behalf of whom such holder holds
the Capital Securities to be exchanged in the Exchange Offer. Each broker-dealer
that receives Exchange Capital Securities for its own account pursuant to the
Exchange Offer must acknowledge that it acquired the Original Capital Securities
for its own account as the result of market-making activities or other trading
activities and must agree that it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Capital Securities. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
Based on the position taken by the staff of the Division of Corporation Finance
of the Commission in the interpretive letters referred to above, the Corporation
and the Trust believe that broker-dealers who acquired Original Capital
Securities for their own accounts, as a result of market-making activities or
other trading activities ("Participating Broker-Dealers"), may fulfill their
prospectus delivery requirements with respect to the Exchange Capital Securities
received upon exchange of such Original Capital Securities (other than Original
Capital Securities which represent an unsold allotment from the initial sale of
the Original Capital Securities) with a prospectus meeting the requirements of
the Securities Act, which may be the prospectus prepared for an exchange offer
so long as it contains a description of the plan of distribution with respect to
the resale of such Exchange Capital Securities. Each broker-dealer that receives
Exchange Capital Securities for its own account pursuant to the Exchange Offer
must acknowledge that it will deliver a prospectus in connection with any resale
of such Exchange Capital Securities. The Letter of Transmittal states that by so
acknowledging and by delivering a Prospectus, a broker-dealer will not be
deemed to admit that it is an underwriter within the meaning of the Securities
Act. This Prospectus, as it may be amended or supplemented from time to time,
may be used by a broker-dealer in connection with resales of Exchange Capital
Securities received in exchange for Original Capital Securities acquired by such
broker-dealer securities as a result of market-making activities or other
trading activities. The Trust and the Corporation have agreed that, ending on
the close of business on the 180th day following the Expiration Date (as
described herein), it will make this Prospectus available to any broker-dealer
for use in connection with any such resale. See "Plan of Distribution."
However, a Participating Broker-Dealer who intends to use this Prospectus in
connection with the resale of Exchange Capital Securities received in exchange
for Original Capital Securities pursuant to the Exchange Offer must notify the
Corporation or the Trust, or cause the Corporation or the Trust to be notified,
on or prior to the Expiration Date, that it is a Participating Broker-Dealer.
Such notice may be given in the space provided for that purpose in the Letter
of Transmittal or may be delivered to the Exchange Agent at one of the
addresses set forth herein under "The Exchange Offer--Exchange Agent." Any
Participating Broker-Dealer who is an "affiliate" of the Corporation or the
Trust may not rely on such interpretive letters and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction. See "The Exchange Offer--Resales of
Exchange Capital Securities."
6
<PAGE> 7
(Continued from the previous page)
In that regard, each Participating Broker-Dealer who surrenders
Original Capital Securities pursuant to the Exchange Offer will be deemed to
have agreed, by execution of the Letter of Transmittal, that upon receipt of
notice from the Corporation or the Trust of the occurrence of any event or the
discovery of any fact which makes any statement contained or incorporated by
reference in this Prospectus untrue in any material respect or which causes this
Prospectus to omit to state a material fact necessary in order to make the
statements contained or incorporated by reference herein, in light of the
circumstances under which they were made, not misleading or of the occurrence of
certain other events specified in the Registration Agreement, such Participating
Broker-Dealer will suspend the sale of Exchange Capital Securities (or the
Exchange Guarantee or the Exchange Junior Subordinated Debt Securities, as
applicable) pursuant to this Prospectus until the Corporation or the Trust has
amended or supplemented this Prospectus to correct such misstatement or omission
and has furnished copies of the amended or supplemented Prospectus to such
Participating Broker-Dealer, or the Corporation or the Trust has given notice
that the sale of the Exchange Capital Securities (or the Exchange Guarantee or
the Exchange Junior Subordinated Debt Securities, as applicable) may be resumed,
as the case may be. If the Corporation or the Trust gives such notice to suspend
the sale of the Exchange Capital Securities (or the Exchange Guarantee or the
Exchange Junior Subordinated Debt Securities, as applicable), it shall extend
the 180-day period referred to above during which Participating Broker-Dealers
are entitled to use this Prospectus in connection with the resale of Exchange
Capital Securities by the number of days during the period from and including
the date of the giving of such notice to and including the date when
Participating Broker-Dealers shall have received copies of the amended or
supplemented Prospectus necessary to permit resales of the Exchange Capital
Securities or to and including the date on which the Corporation or the Trust
has given notice that the sale of Exchange Capital Securities (or the Exchange
Guarantee or the Exchange Junior Subordinated Debt Securities, as applicable)
may be resumed, as the case may be.
Prior to the Exchange Offer, there has been only a limited secondary
market and no public market for the Original Capital Securities. The Exchange
Capital Securities will be a new issue of securities for which there currently
is no market. Although the Initial Purchasers have informed the Corporation
and the Trust that they each currently intend to make a market in the Exchange
Capital Securities, they are not obligated to do so, and any such market
making may be discontinued at any time without notice. Accordingly, there can
be no assurance as to the development or liquidity of any market for the
Exchange Capital Securities. The Corporation and the Trust currently do not
intend to apply for listing of the Exchange Capital Securities on any
securities exchange or for quotation through the National Association of
Securities Dealers Automated Quotation System.
Any Original Capital Securities not tendered and accepted in the
Exchange Offer will remain outstanding and will be entitled to all the same
rights and will be subject to the same limitations applicable thereto under
the Declaration (except for those rights which terminate upon consummation of
the Exchange Offer). Following consummation of the Exchange Offer, the holders
of Original Capital Securities will continue to be subject to all of the
existing restrictions upon transfer thereof and neither the Corporation nor
the Trust will have any further obligation to such holders (other than under
certain limited circumstances) to provide for registration under the
Securities Act of the Original Capital Securities held by them. To the extent
that Original Capital Securities are tendered and accepted in the Exchange
Offer, a holder's ability to sell untendered Original Capital Securities could
be adversely affected. See "Risk Factors--Consequences of a Failure to
Exchange Original Capital Securities."
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION. HOLDERS OF ORIGINAL CAPITAL SECURITIES ARE URGED TO
READ THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CAREFULLY BEFORE
DECIDING WHETHER TO TENDER THEIR ORIGINAL CAPITAL SECURITIES PURSUANT TO THE
EXCHANGE OFFER.
Original Capital Securities may be tendered for exchange on or prior to
5:00 p.m., New York City time, on , 1997 (such time on such date being
hereinafter called the "Expiration Date"), unless the Exchange Offer is extended
by the Corporation or the Trust (in which case the term "Expiration Date" shall
mean the latest date and time to which the Exchange Offer is extended). Tenders
of Original Capital Securities may be withdrawn at any time on or prior to the
Expiration Date. The Exchange Offer is not conditioned upon any minimum
Liquidation Amount of Original Capital Securities being tendered for exchange.
However, the Exchange Offer is subject to certain events and conditions which
may be waived by the Corporation or the Trust and to the terms and provisions of
the Registration Rights Agreement. Original Capital Securities may be tendered
in whole or in part having an aggregate Liquidation Amount of not less than
$100,000 (100 Capital Securities) or any integral multiple of $1,000 Liquidation
Amount (one Capital Security) in excess thereof. The Corporation as Issuer of
Junior Subordinated Debt Securities has agreed to pay all expenses of the
Exchange Offer. See "The Exchange Offer--Fees and Expenses." Holders of the
Original Capital Securities whose Original Capital Securities are accepted for
exchange will not receive Distributions on such Original Capital Securities and
will be deemed to have waived the
7
<PAGE> 8
(Continued from the previous page)
right to receive any Distributions on such Original Capital Securities
accumulated from and after December 31, 1996. See "The Exchange
Offer--Distributions on Exchange Capital Securities."
Neither the Corporation nor the Trust will receive any cash proceeds
from the issuance of the Exchange Capital Securities offered hereby. No
dealer-manager is being used in connection with this Exchange Offer. See "Use
of Proceeds" and "Plan of Distribution."
-------------------
8
<PAGE> 9
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THIS EXCHANGE
OFFER AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION OR THE TRUST. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE CORPORATION OR THE TRUST SINCE THE DATE HEREOF. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER OR A SOLICITATION BY ANYONE IN ANY JURISDICTION IN
WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON
MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR ANYONE TO WHOM
IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
-------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Available Information ..................................................... 9
Incorporation of Certain Documents by Reference ........................... 10
Summary ................................................................... 11
Risk Factors .............................................................. 18
Ratios of Earnings to Fixed Charges ....................................... 22
North Fork Capital Trust I ................................................ 23
North Fork ................................................................ 24
Selected Historical Financial Information ................................. 25
Capitalization ............................................................ 27
Accounting Treatment....................................................... 28
The Exchange Offer ........................................................ 29
Description of Exchange Securities ........................................ 37
Description of Original Securities ........................................ 56
Relationship Among the Exchange Capital Securities, the
Exchange Junior Subordinated Debt Securities and the Exchange Guarantee .. 57
Certain United States Federal Income Tax Consequences ..................... 58
ERISA Considerations ...................................................... 62
Plan of Distribution ...................................................... 63
Validity of Exchange Securities ........................................... 63
Experts ................................................................... 63
</TABLE>
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports, proxy statements and other information with
the Commission. Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities of the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the regional
offices of the Commission located at 7 World Trade Center, 13th Floor, Suite
1300, New York, New York 10048 and Suite 1400, Citicorp Center, 14th Floor, 500
West Madison Street, Chicago, Illinois 60661. Copies of such material can also
be obtained at prescribed rates by writing to the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. Such
information may also be accessed electronically by means of the Commission's
home page on the Internet (http://www.sec.gov.). In addition, such reports,
proxy statements and other information concerning the Corporation can be
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005, on which exchange certain securities of the
Corporation are listed.
No separate financial statements of the Trust have been included
herein. The Corporation and the Trust do not consider that such financial
statements would be material to holders of the Capital Securities because the
Trust is a newly formed special purpose entity, has no operating history or
independent operations and is not engaged in and does not propose to engage in
any activity other than holding as trust assets the Junior Subordinated Debt
Securities and issuing
9
<PAGE> 10
the Trust Securities. See "North Fork Capital Trust I" and "Description of
Exchange Securities." In addition, the Corporation does not expect that the
Trust will file reports under the Exchange Act with the Commission.
This Prospectus constitutes a part of a registration statement on
Form S-4 (the "Registration Statement") filed by the Corporation and the Trust
with the Commission under the Securities Act. This Prospectus does not contain
all the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission, and reference is hereby made to the Registration Statement and to
the exhibits relating thereto for further information with respect to the
Corporation, the Trust and the Exchange Securities. Any statements contained
herein concerning the provisions of any document are not necessarily complete,
and, in each instance, reference is made to the copy of such document filed as
an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following document filed by the Corporation with the Commission
is incorporated into this Prospectus by reference:
1. The Corporation's Annual Report on Form 10-K for the
year ended December 31, 1996;
Each document or report subsequently filed by the Corporation pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof
and prior to the termination of the offering of the Exchange Securities offered
hereby shall be deemed to be incorporated by reference into this Prospectus and
to be a part of this Prospectus from the date of filing of such document. Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
As used herein, the terms "Prospectus" and "herein" mean this
Prospectus including the documents incorporated or deemed to be incorporated
herein by reference, as the same may be amended, supplemented or otherwise
modified from time to time. Statements contained in this Prospectus as to the
contents of any contract or other document referred to herein do not purport
to be complete, and where reference is made to the particular provisions of
such contract or other document, such provisions are qualified in all respects
by reference to all of the provisions of such contract or other document. The
Corporation will provide without charge to any person to whom this Prospectus
is delivered, on the written or oral request of such person, a copy of any or
all of the foregoing documents incorporated by reference herein (other than
exhibits not specifically incorporated by reference into the texts of such
documents). Requests for such documents should be directed to: Investor
Relations, North Fork Bancorporation, Inc., 275 Broad Hollow Road, Melville,
NY 11747. Telephone requests may be directed to Investor Relations at (516)
844-1259.
10
<PAGE> 11
SUMMARY
The following is a summary of certain information contained elsewhere
in this Prospectus. Reference is made to, and this summary is qualified in its
entirety by, the more detailed information and financial statements, including
the notes thereto, contained elsewhere in this Prospectus and in documents
incorporated by reference hereto.
NORTH FORK CAPITAL TRUST I
The Trust is a statutory business trust formed under Delaware law
pursuant to (i) the Declaration and (ii) the filing of a certificate of trust
with the Delaware Secretary of State on December 23, 1996. The Trust's
business and affairs are conducted by the Issuer Trustees: Bankers Trust, as
Property Trustee, Bankers Trust (Delaware), as Delaware Trustee, and two
individual Administrative Trustees who are employees or officers of or
affiliated with the Corporation. The Trust exists for the exclusive purposes
of (i) issuing and selling the Trust Securities, (ii) using the proceeds from
the sale of the Trust Securities to acquire the Junior Subordinated Debt
Securities issued by the Corporation and (iii) engaging in only those other
activities necessary, advisable or incidental thereto (such as registering the
transfer of the Capital Securities). The Junior Subordinated Debt Securities
will be the sole assets of the Trust, and payments under the Junior
Subordinated Debt Securities will be the sole revenues of the Trust. All of
the Common Securities will be owned directly or indirectly by the Corporation.
NORTH FORK
North Fork, with its executive headquarters located in Melville, New
York, is a bank holding company organized under the laws of the State of
Delaware in 1980 and registered under the Bank Holding Company Act of 1956, as
amended. North Fork's primary subsidiary, North Fork Bank, operates 82 retail
banking facilities throughout Suffolk, Nassau, New York, Queens, Westchester and
Rockland Counties of New York. North Fork, through North Fork Bank, provides a
variety of banking and financial services to middle market and small business
organizations, local government units, and retail customers in the metropolitan
New York area. On December 31, 1996, North Side Savings Bank ("North Side")
merged (the "Merger") with and into North Fork Bank, with North Fork Bank
surviving the merger as a wholly owned subsidiary of North Fork. North Side
had $1.6 billion in total assets, $1.2 billion in deposit liabilities, $124.4
million in capital and operated seventeen full-service banking locations in the
New York counties of Bronx, Queens, Nassau and Suffolk. North Fork issued 7.5
million shares of common stack in connection with this merger, which was
accounted for under the pooling-of-interests method of accounting, and
accordingly, the Registrant's consolidated financial statements include the
consolidated results of North Side. Immediately after the Merger, North Fork
had total assets and deposits of $5.8 billion and $4.5 billion, respectively.
The principal executive offices of North Fork are located a 275 Broad Hollow
Road, Melville, New York 11747 and its telephone number is (516) 844-1004.
Acquisitions and Mergers have been, and are expected to continue to
be, an important part of the expansion of the Corporation's business. During the
first quarter of 1996, North Fork Bank consummated the acquisition of the
domestic commercial banking business of Extebank, which at closing had
approximately $388 million in total assets and $348 million in deposit
liabilities and $30 million in capital, for $47 million in cash. During such
quarter, North Fork Bank also consummated the acquisition of ten Long Island
branches of First Nationwide Bank, with approximately $572 million in deposits,
at a deposit premium of 6.35%, for $36 million in cash.
At December 31, 1996, North Fork had total assets of $5.8 billion,
deposit liabilities of $4.5 billion and stockholders' equity of $457.5 million.
On December 20, 1996, the Corporation completed the public offering of 600,000
shares of its common stock held in treasury, for which it received aggregate
proceeds of approximately $19.7 million.
North Fork is a legal entity separate and distinct from its
subsidiaries. The ability of holders of debt and equity securities of North
Fork to benefit from the distribution of assets of any subsidiary upon the
liquidation or reorganization of such subsidiary is subordinate to prior
claims of creditors of the subsidiary (including depositors in the case of
banking subsidiaries) except to the extent that a claim of North Fork as a
creditor may be recognized.
11
<PAGE> 12
In addition, there are regulatory limitations on the payment of
dividends directly or indirectly to North Fork from its existing banking
subsidiary. Under applicable banking statutes, at January 1, 1997, North
Fork's banking subsidiary could have declared additional dividends of
approximately $55.6 million. However, Federal and state regulatory agencies
also have the authority to limit further North Fork's banking subsidiary's
payment of dividends based on other factors, such as the maintenance of
adequate capital for such subsidiary bank, which could reduce the amount of
dividends otherwise payable.
Under the policy of the Federal Reserve, North Fork is expected to
act as a source of financial strength to each subsidiary bank and to commit
resources to support such subsidiary bank in circumstances where North Fork
might not do so absent such policy. In addition, any subordinated loans by
North Fork to any subsidiary bank would also be subordinate in right of
payment to deposits and obligations to general creditors of such subsidiary
bank.
THE EXCHANGE OFFER
The Exchange Offer................ Up to $100,000,000 aggregate Liquidation
Amount of Exchange Capital Securities are
being offered in exchange for a like
aggregate Liquidation Amount of Original
Capital Securities. Original Capital
Securities may be tendered for exchange in
whole or in part in a Liquidation Amount of
$100,000 (100 Capital Securities) or any
integral multiple of $1,000 (one Capital
Security) in excess thereof. The
Corporation and the Trust are making the
Exchange Offer in order to satisfy their
obligations under the Registration
Agreement relating to the Original Capital
Securities. For a description of the
procedures for tendering Original Capital
Securities, see "The Exchange
Offer--Procedures for Tendering Original
Capital Securities."
Expiration Date................... 5:00 p.m., New York City time, on ,
1997, unless the Exchange Offer is extended
by the Corporation or the Trust (in which
case the Expiration Date will be the latest
date and time to which the Exchange Offer
is extended). See "The Exchange
Offer--Terms of the Exchange Offer."
Conditions to the Exchange Offer.. The Exchange Offer is subject to certain
conditions, which may be waived by the
Corporation and the Trust in their sole
discretion. The Exchange Offer is not
conditioned upon any minimum Liquidation
Amount of Original Capital Securities
being tendered. See "The Exchange
Offer--Conditions to the Exchange Offer."
Terms of the Exchange Offer....... The Corporation and the Trust reserve the
right in their sole and absolute
discretion, subject to applicable law, at
any time and from time to time, (i) to
delay the acceptance of the Original
Capital Securities for exchange, (ii) to
terminate the Exchange Offer if certain
specified conditions have not been
satisfied, (iii) to extend the Expiration
Date of the Exchange Offer and retain all
Original Capital Securities tendered
pursuant to the Exchange Offer, subject,
however, to the right of holders of
Original Capital Securities to withdraw
their tendered Original Capital
Securities, or (iv) to waive any
condition or otherwise amend the terms of
the Exchange Offer in any respect. See
"The Exchange Offer--Terms of the
Exchange Offer."
Withdrawal Rights................. Tenders of Original Capital Securities
may be withdrawn at any time on or prior
to the Expiration Date by delivering a
written notice of such withdrawal to the
Exchange Agent in conformity with certain
procedures set
12
<PAGE> 13
forth below under "The Exchange
Offer--Withdrawal Rights."
Procedures for Tendering Original
Capital Securities............... Tendering holders of Original Capital
Securities must complete and sign a
Letter of Transmittal in accordance with
the instructions contained therein and
forward the same by mail, facsimile or
hand delivery, together with any other
required documents, to the Exchange
Agent, either with the Original Capital
Securities to be tendered or in
compliance with the specified procedures
for guaranteed delivery of Original
Capital Securities. Certain brokers,
dealers, commercial banks, trust
companies and other nominees may also
effect tenders by book-entry transfer.
Holders of Original Capital Securities
registered in the name of a broker,
dealer, commercial bank, trust company or
other nominee are urged to contact such
person promptly if they wish to tender
Original Capital Securities pursuant to
the Exchange Offer. See "The Exchange
Offer-- Procedures for Tendering
Original Capital Securities."
Letters of Transmittal and certificates
representing Original Capital Securities
should not be sent to the Corporation or
the Trust. Such documents should only be
sent to the Exchange Agent.
Resales of Exchange Capital
Securities....................... The Corporation and the Trust are making
the Exchange Offer in reliance on the
position of the staff of the Division of
Corporation Finance of the Commission as
set forth in certain interpretive letters
addressed to third parties in other
transactions. However, neither the
Corporation nor the Trust has sought its
own interpretive letter and there can be
no assurance that the staff of the
Division of Corporation Finance of the
Commission would make a similar
determination with respect to the
Exchange Offer as it has in such
interpretive letters to third parties.
Based on these interpretations by the
staff of the Division of Corporation
Finance of the Commission, and subject to
the two immediately following sentences,
the Corporation and the Trust believe
that Exchange Capital Securities issued
pursuant to this Exchange Offer in
exchange for Original Capital Securities
may be offered for resale, resold and
otherwise transferred by a holder thereof
(other than a holder who is a
broker-dealer) without further compliance
with the registration and prospectus
delivery requirements of the Securities
Act, provided that such Exchange Capital
Securities are acquired in the ordinary
course of such holder's business and that
such holder is not participating, and has
no arrangement or understanding with any
person to participate, in a distribution
(within the meaning of the Securities
Act) of such Exchange Capital Securities.
However, any holder of Original Capital
Securities who is an "affiliate" of the
Corporation or the Trust or who intends
to participate in the Exchange Offer for
the purpose of distributing the Exchange
Capital Securities, or any broker-dealer
who purchased the Original Capital
Securities from the Trust to resell
pursuant to Rule 144A or any other
available exemption under the Securities
Act, (a) will not be able to rely on the
interpretations of the staff of the
Division of Corporation Finance of the
Commission set forth in the
above-mentioned interpretive letters, (b)
will not be permitted or entitled to
tender such Original Capital Securities
in the Exchange Offer and (c)
13
<PAGE> 14
must comply with the registration and
prospectus delivery requirements of the
Securities Act in connection with any
sale or other transfer of such Original
Capital Securities unless such sale is
made pursuant to an exemption from such
requirements. In addition, as described
below, if any broker-dealer holds
Original Capital Securities acquired for
its own account as a result of
market-making or other trading activities
and exchanges such Original Capital
Securities for Exchange Capital
Securities, then such broker-dealer must
deliver a prospectus meeting the
requirements of the Securities Act in
connection with any resales of such
Exchange Capital Securities.
Each holder of Original Capital Securities
who wishes to exchange Original Capital
Securities for Exchange Capital Securities
in the Exchange Offer will be required to
represent that (i) it is not an "affiliate"
of the Corporation or the Trust, (ii) any
Exchange Capital Securities to be received
by it are being acquired in the ordinary
course of its business, (iii) it has no
arrangement or understanding with any
person to participate in a distribution
(within the meaning of the Securities Act)
of such Exchange Capital Securities, and
(iv) if such holder is not a broker-dealer,
such holder is not engaged in, and does not
intend to engage in, a distribution (within
the meaning of the Securities Act) of such
Exchange Capital Securities. Each
broker-dealer that receives Exchange
Capital Securities for its own account in
exchange for Original Capital Securities,
where such Original Capital Securities
were acquired by such broker-dealer as a
result of market-making activities or other
trading activities, must acknowledge that
it will deliver a prospectus meeting the
requirements of the Securities Act in
connection with any resale of such Exchange
Capital Securities. The Letter of
Transmittal states that, by so
acknowledging and by delivering such a
prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter"
within the meaning of the Securities Act.
Based on the position taken by the staff of
the Division of Corporation Finance of the
Commission in the interpretive letters
referred to above, the Corporation and the
Trust believe that Participating
Broker-Dealers who acquired Original
Capital Securities for their own accounts
as a result of market-making activities or
other trading activities may fulfill their
prospectus delivery requirements with
respect to the Exchange Capital Securities
received upon exchange of such Original
Capital Securities (other than Original
Capital Securities which represent an
unsold allotment from the initial sale of
the Original Capital Securities) with a
prospectus meeting the requirements of the
Securities Act, which may be the prospectus
prepared for an exchange offer so long as
it contains a description of the plan of
distribution with respect to the resale of
such Exchange Capital Securities.
Accordingly, this Prospectus, as it may be
amended or supplemented from time to time,
may be used by a Participating
Broker-Dealer in connection with resales of
Exchange Capital Securities received in
exchange for Original Capital Securities
where such Original Capital Securities were
acquired by such Participating
Broker-Dealer for its own account as a
result of market-making or other trading
activities. Subject to certain provisions
set forth in the Registration Agreement
and to the limitations described below
under "The Exchange Offer--Resales of
Exchange Capital
14
<PAGE> 15
Securities," the Corporation and the
Trust have agreed that this Prospectus,
as it may be amended or supplemented from
time to time, may be used by a
Participating Broker-Dealer in connection
with resales of such Exchange Capital
Securities for a period ending 180 days
after the Expiration Date (subject to
extension under certain limited
circumstances) or, if earlier, when all
such Exchange Capital Securities have
been disposed of by such Participating
Broker-Dealer. See "Plan of
Distribution." Any Participating
Broker-Dealer who is an "affiliate" of
the Corporation or the Trust may not rely
on such interpretive letters and must
comply with the registration and
prospectus delivery requirements of the
Securities Act in connection with any
resale transaction. See "The Exchange
Offer--Resales of Exchange Capital
Securities."
Exchange Agent.................... The exchange agent with respect to the
Exchange Offer is Bankers Trust Company
(the "Exchange Agent"). The addresses,
and telephone and facsimile numbers, of
the Exchange Agent are set forth in "The
Exchange Offer --Exchange Agent" and in
the Letter of Transmittal.
Use of Proceeds................... Neither the Corporation nor the Trust
will receive any cash proceeds from the
issuance of the Exchange Capital
Securities offered hereby.
Certain United States Federal
Income Tax Consequences; ERISA
Considerations.................... Holders of Original Capital Securities
should review the information set forth
under "Certain United States Federal
Income Tax Consequences" and "ERISA
Considerations" prior to tendering
Original Capital Securities in the
Exchange Offer.
THE EXCHANGE CAPITAL SECURITIES
Securities Offered................ Up to $100,000,000 aggregate Liquidation
Amount of the Trust's Exchange Capital
Securities which have been registered
under the Securities Act (Liquidation
Amount $1,000 per Exchange Capital
Security). The Exchange Capital
Securities will be issued and the
Original Capital Securities were issued
under the Declaration. The Exchange
Capital Securities and any Original
Capital Securities which remain
outstanding after consummation of the
Exchange Offer will vote together as a
single class for purposes of determining
whether holders of the requisite
percentage in outstanding Liquidation
Amount thereof have taken certain actions
or exercised certain rights under the
Declaration. See "Description of Exchange
Securities--Description of Exchange
Capital Securities--Voting Rights;
Amendment of the Declaration." The terms
of the Exchange Capital Securities are
identical in all material respects to the
terms of the Original Capital Securities,
except that the Exchange Capital
Securities have been registered under the
Securities Act, will not be subject to
the certain restrictions on transfer
applicable to the Original Capital
Securities and will not provide for any
increase in the Distribution rate thereon.
See "The Exchange Offer--Purpose of the
Exchange Offer," "Description of Exchange
Securities" and "Description of Original
Securities."
15
<PAGE> 16
Distribution Dates................ June 15 and December 15 of each year,
commencing June 15, 1997.
Extension Periods................. Distributions on the Exchange Capital
Securities will be deferred for the
duration of any Extension Period elected
by the Corporation with respect to the
payment of interest on the Exchange
Junior Subordinated Debt Securities. No
Extension Period will exceed 10
consecutive semi-annual periods or extend
beyond the Stated Maturity of the Junior
Subordinated Debt Securities. See
"Description of Exchange
Securities--Description of Exchange
Junior Subordinated Debt
Securities--Option to Extend Interest
Payment Date" and "Certain United States
Federal Income Tax Consequences--Interest
Income and Original Issue Discount."
Ranking........................... The Exchange Capital Securities will rank
pari passu, and payments thereon will be
made pro rata, with the Original Capital
Securities and the Common Securities
except as described under "Description of
Exchange Securities--Description of
Exchange Capital
Securities--Subordination of Common
Securities." The Exchange Junior
Subordinated Debt Securities will rank
pari passu with the Original Junior
Subordinated Debt Securities all other
junior subordinated debt securities to be
issued by the Corporation pursuant to the
Indenture with substantially similar
subordination terms ("Other Debentures"),
and which will be issued and sold to
other trusts to be established by the
Corporation in each case similar to the
Trust ("Other Trusts"), and will be
unsecured and subordinate and junior in
right of payment to the extent and in the
manner set forth in the Indenture to all
Senior Debt of the Corporation. See
"Description of Exchange
Securities--Description of Exchange
Junior Subordinated Debt Securities." The
Exchange Guarantee will rank pari passu
with the Original Guarantee and all other
guarantees to be issued by the
Corporation with respect to capital
securities to be issued by Other Trusts
("Other Guarantees"), and will constitute
an unsecured obligation of the
Corporation and will rank subordinate and
junior in right of payment to the extent
and in the manner set forth in the
Guarantee to all Senior Debt. See
"Description of Exchange
Securities--Description of Exchange
Guarantee." In addition, because the
Corporation is a holding company, the
Junior Subordinated Debt Securities and
the Guarantee are effectively
subordinated to all existing and future
liabilities of the Corporation's
subsidiaries, including deposits.
Redemption........................ The Trust Securities are subject to
mandatory redemption (i) in whole, but
not in part, at the Stated Maturity of
the Junior Subordinated Debt Securities
upon the redemption thereof, (ii) in
whole, but not in part, at any time prior
to December 15, 2006, contemporaneously
with the optional redemption of the
Junior Subordinated Debt Securities upon
the occurrence and continuation of a
Special Event (as defined herein) and
(iii) in whole or in part at any time on
or after December 15, 2006
contemporaneously with any optional
redemption by the Corporation of Junior
Subordinated Debt Securities, in each
case at the applicable Redemption Price.
See "Description of Exchange
Securities--Description of Exchange
Capital Securities--Mandatory
Redemption."
16
<PAGE> 17
Rating............................ The Exchange Capital Securities are
expected to be rated "BB+" by Standard &
Poor's Ratings Services and "baa3" by
Moody's Investors Service, Inc. A
security rating is not a recommendation
to buy, sell or hold securities and may
be subject to revision or withdrawal at
any time by the assigning rating
organization.
Transfer Restrictions............. The Exchange Capital Securities will be
issued, and may be transferred, only in
blocks having a Liquidation Amount of not
less than $100,000 (100 Capital
Securities).
ERISA Considerations.............. Prospective purchasers must carefully
consider the restrictions on purchase set
forth under "ERISA Considerations."
Absence of Market for the
Exchange Capital Securities....... The Exchange Capital Securities will be a
new issue of securities for which there
currently is no market. Although Salomon
Brothers, Inc and Keefe, Bruyette &
Woods, Inc., the initial purchasers of
the Original Capital Securities (the
"Initial Purchasers"), have informed the
Corporation and the Trust that they each
currently intend to make a market in the
Exchange Capital Securities, they are not
obligated to do so, and any such market
making may be discontinued at any time
without notice. Accordingly, there can be
no assurance as to the development or
liquidity of any market for the Exchange
Capital Securities. The Trust and the
Corporation do not intend to apply for
listing of the Exchange Capital
Securities on any securities exchange or
for quotation through the National
Association of Securities Dealers
Automated Quotation System ("NASDAQ").
See "Plan of Distribution."
RISK FACTORS
Prospective investors should carefully consider the matters set forth under
"Risk Factors."
17
<PAGE> 18
RISK FACTORS
Prospective investors should consider carefully, in addition to the
other information contained in this Prospectus, the following factors in
connection with the Exchange Offer and the Exchange Capital Securities offered
hereby. This Prospectus contains certain forward-looking statements and
information relating to the Corporation that are based on the beliefs of
management as well as assumptions made by and information currently available
to management. The words "anticipate," "believe," "estimate," "expect,"
"intends" and similar expressions, as they relate to the Corporation or the
Corporation's management, are intended to identify forward-looking statements.
Such statements reflect the current views of the Corporation with respect to
future events and are subject to certain risks,uncertainties and assumptions,
including the risk factors described in this Prospectus. Should one or more of
these risks or uncertainties materialize, or should underlying assumptions
prove incorrect, actual results may vary materially from those described
herein as anticipated, believed, estimated or expected. The Corporation does
not intend to update these forward-looking statements.
RANKING OF OBLIGATIONS UNDER THE GUARANTEE AND THE JUNIOR SUBORDINATED DEBT
SECURITIES
The obligations of the Corporation under the Guarantee issued by the
Corporation for the benefit of the holders of Capital Securities and under the
Junior Subordinated Debt Securities are unsecured and rank subordinate and
junior in right of payment to all Senior Debt of the Corporation. At December
31, 1996, the aggregate outstanding Senior Debt of the Corporation (which, as
defined, includes all outstanding subordinated debt of the Corporation) was
approximately $25 million. Upon the issuance of the Junior Subordinated Debt
Securities, the Corporation will not have any indebtedness that ranks pari
passu with or junior to its obligations under the Guarantee and the Junior
Subordinated Debt Securities. Because the Corporation is a bank holding
company, the right of the Corporation to participate in any distribution of
assets of any subsidiary, including North Fork Bank, upon such subsidiary's
liquidation or reorganization or otherwise (and thus the ability of holders of
the Capital Securities to benefit indirectly from such distribution), is
subject to the prior claims of creditors of such subsidiary, except to the
extent that the Corporation may itself be recognized as a creditor of such
subsidiary. Accordingly, the Junior Subordinated Debt Securities will be
effectively subordinated to all existing and future liabilities of the
Corporation's subsidiaries, and holders of Junior Subordinated Debt Securities
should look only to the assets of the Corporation for payments on the Junior
Subordinated Debt Securities. Because the Corporation is a holding company
with limited assets and liabilities, a substantial portion of the consolidated
liabilities of the Corporation are liabilities of its subsidiaries. The
Guarantee will constitute an unsecured obligation of the Corporation and will
rank subordinate and junior in right of payment to all Senior Debt in the same
manner as the Junior Subordinated Debt Securities. See "North Fork." None of
the Indenture, the Guarantee or the Declaration places any limitation on the
amount of secured or unsecured debt, including Senior Debt, that may be
incurred by the Corporation or any subsidiary. See "Description of Exchange
Securities--Description of Exchange Junior Subordinated Debt
Securities--Subordination" and "--Description of Exchange Guarantee--Status of
the Guarantee."
The ability of the Trust to pay amounts due on the Capital Securities
is solely dependent upon the Corporation making payments on the Junior
Subordinated Debt Securities as and when required.
OPTION TO EXTEND INTEREST PAYMENT DATE; TAX CONSEQUENCES; MARKET PRICE
CONSEQUENCES
So long as no Debenture Event of Default (as defined herein) has
occurred and is continuing, the Corporation has the right under the Indenture
to defer the payment of interest on the Junior Subordinated Debt Securities at
any time or from time to time for a period not exceeding 10 consecutive
semi-annual periods with respect to each Extension Period; provided, however,
that no Extension Period may extend beyond the Stated Maturity of the Junior
Subordinated Debt Securities. As a consequence of any such deferral,
semi-annual Distributions on the Trust Securities by the Trust will also be
deferred (and the amount of Distributions to which holders of the Trust
Securities are entitled will accumulate additional Distributions thereon at
the rate of 8.70% per annum, compounded semi-annually) from the relevant
payment date for such Distributions during any such Extension Period. During
any Extension Period, the Corporation may not (i) declare or pay any dividends
or distributions on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of the Corporation's capital stock (which
includes common and preferred stock), (ii) make any payment of principal,
interest or premium, if any, on, or repay, repurchase or redeem any debt
securities of the Corporation (including Other Debentures) that rank pari
passu with or junior in interest to, the Junior Subordinated Debt Securities
or (iii) make any guarantee payments with respect to any guarantee by the
Corporation of the debt securities of any subsidiary of the Corporation
(including Other Guarantees) if such guarantee ranks pari passu with or junior
in interest to the Junior Subordinated Debt Securities (other than (a)
dividends or distributions in common stock of the Corporation, (b) any
declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the Guarantee, (d) purchases or acquisitions of shares of
the Corporation's common stock in connection with the satisfaction by the
Corporation of its obligations under any employee benefit plan or any other
contractual obligation of the Corporation (other than a contractual obligation
ranking pari passu with or junior to the Junior Subordinated Debt Securities),
(e) as a result of a reclassification of the Corporation's capital stock or
the exchange or conversion of one class or series of the Corporation's capital
stock for another class or series of the Corporation's capital stock or (f)
the purchase of fractional interests in shares of the Corporation's capital
stock pursuant to the conversion or exchange provisions of such capital stock
or the security being converted or exchanged). Prior to the termination of any
Extension
18
<PAGE> 19
Period, the Corporation may further extend such Extension Period; provided,
however, that such extension does not cause such Extension Period to exceed 10
consecutive semi-annual periods or to extend beyond the Stated Maturity. Upon
the termination of any Extension Period and the payment of all interest then
accrued and unpaid on the Junior Subordinated Debt Securities (together with
interest thereon at the annual rate of 8.70%, compounded semi-annually, to the
extent permitted by applicable law), the Corporation may elect to begin a new
Extension Period, subject to the above requirements. There is no limitation on
the number of times that the Corporation may elect to begin an Extension
Period. See "Description of Exchange Securities--Description of Exchange
Capital Securities--Distributions" and "--Description of Exchange Junior
Subordinated Debt Securities--Option to Extend Interest Payment Date."
Because the Corporation believes that the likelihood of its
exercising its option to defer payments of interest is remote, the Junior
Subordinated Debt Securities will be treated under Treasury regulations as
issued without original issue discount ("OID") for United States federal
income tax purposes. As a result, holders of Capital Securities generally will
include their allocable share of the interest on the Junior Subordinated Debt
Securities in taxable income under their own methods of tax accounting (i.e.,
cash or accrual). Under the Treasury regulations, however, if the Corporation
exercises its right to defer payments of interest, the Junior Subordinated
Debt Securities will become OID instruments. Consequently, holders of Capital
Securities will be required to include their pro rata share of OID in gross
income as it accrues for United States federal income tax purposes in advance
of the receipt of cash attributable to such interest income and such holders
will not receive the cash related to such income if they dispose of the
Capital Securities prior to the record date for payment of distributions
thereafter. See "Certain United States Federal Income Tax
Consequences--Interest Income and Original Issue Discount" and "--Sales of
Capital Securities."
Should the Corporation elect to exercise its right to defer payments
of interest on the Junior Subordinated Debt Securities in the future, the
market price of the Capital Securities is likely to be affected. A holder that
disposes of its Capital Securities during an Extension Period, therefore,
might not receive the same return on its investment as a holder that continues
to hold its Capital Securities. In addition, as a result of the existence of
the Corporation's right to defer interest payments on the Junior Subordinated
Debt Securities, the market price of the Capital Securities (which represent
beneficial ownership interests in the Trust holding the Junior Subordinated
Debt Securities as its sole asset) may be more volatile than the market
prices of other securities that are not subject to such deferrals.
SPECIAL EVENT REDEMPTION; POSSIBLE TAX LAW CHANGES AFFECTING THE CAPITAL
SECURITIES
Upon the occurrence and continuation of a Special Event, the
Corporation may, at its option and subject to receipt of prior approval of the
Federal Reserve if such approval is then required under applicable law, rules,
guidelines or policies, redeem the Junior Subordinated Debt Securities in
whole, but not in part, at the Special Event Prepayment Price (as defined
herein). In such event, the Trust will redeem the Trust Securities on a pro
rata basis to the same extent as the Junior Subordinated Debt Securities are
redeemed by the Corporation. See "Description of Exchange
Securities--Description of Exchange Junior Subordinated Debt
Securities--Special Event Prepayment", "--Description of Exchange Capital
Securities--Mandatory Redemption" and "--Description of Exchange Capital
Securities--Liquidation of the Trust and Distribution of Junior Subordinated
Debt Securities."
A "Special Event" means a Tax Event or a Regulatory Capital Event, as
the case may be.
A "Tax Event" means the receipt by the Corporation of an opinion of
independent counsel experienced in such matters to the effect that, as a
result of any amendment to, or change (including any announced proposed
change) in, the laws or any regulations thereunder of the United States or any
political subdivision or taxing authority thereof or therein, or as a result
of any official administrative pronouncement or judicial decision interpreting
or applying such laws or regulations, which amendment or change is effective
or which proposed change, pronouncement or decision is announced on or after
the Issue Date, there is more than an insubstantial risk that (i) the Trust
is, or will be within 90 days of the date of such opinion, subject to United
States federal income tax with respect to income received or accrued on the
Junior Subordinated Debt Securities, (ii) interest payable by the Corporation
on the Junior Subordinated Debt Securities is not, or within 90 days of the
date of such opinion, will not be, deductible by the Corporation, in whole or
in part, for United States federal income tax purposes, or (iii) the Trust is,
or will be within 90 days of the date of such opinion, subject to more than a
de minimis amount of other taxes, duties or other governmental charges.
A "Regulatory Capital Event" means that the Corporation shall have
received an opinion of independent bank regulatory counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in the laws (or any regulations
thereunder) of the United States or any rules, guidelines or policies of the
Federal Reserve or (b) any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or such pronouncement or decision is announced on or after
the date of original issuance of the Capital Securities, the Capital
Securities do not constitute, or within 90 days of the date thereof, will not
constitute, Tier 1 capital (as defined herein) (or its then equivalent);
provided, however, that the distribution of the Junior Subordinated Debt
Securities in connection with the liquidation of the Trust by the Corporation
and the treatment thereafter of the Junior Subordinated Debt Securities as
other than Tier 1 capital shall not in and of itself constitute a Regulatory
Capital Event unless such liquidation shall have occurred in connection with a
Tax Event.
19
<PAGE> 20
PROPOSED TAX LEGISLATION
On February 6, 1997, as part of President Clinton's fiscal 1998 Budget
Proposal, the United States Treasury Department proposed legislation that
would, among other things, deny an issuer a deduction for United States federal
income tax purposes for the payment of interest on instruments with
characteristics similar to the Junior Subordinated Debt Securities. If the
proposed legislation were enacted in its current form, it is not expected to
apply to the Junior Subordinated Debt Securities since the proposed effective
date for this provision will be the date of first committee action, which has
not yet occurred. There can be no assurances, however, that the proposed
legislation, if enacted, or similar legislation enacted after the date hereof
would not adversely affect the tax treatment of the Junior Subordinated Debt
Securities, resulting in a Tax Event, which may permit the Corporation, upon
the receipt of any required regulatory approval, to cause a redemption of the
Trust Securities at the Special Event Redemption Price by electing to prepay
the Junior Subordinated Debt Securities at the Special Event Prepayment Price.
See "Description of Exchange Securities--Description of Exchange Capital
Securities--Mandatory Redemption" and "Description of Exchange Securities--
Description of Exchange Junior Subordinated Debt Securities--Special Event
Prepayment." See also "Certain United States Federal Income Tax Consequences--
Proposed Tax Legislation."
LIQUIDATION DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES
The Corporation has the right at any time to distribute the Junior
Subordinated Debt Securities to holders of the Trust Securities. Under current
United States federal income tax law, a distribution of Junior Subordinated
Debt Securities upon the dissolution of the Trust would not be a taxable event
to holders of the Capital Securities. If, however, the Trust is characterized
for United States federal income tax purposes as an association taxable as a
corporation at the time of dissolution of the Trust, the distribution of the
Junior Subordinated Debt Securities may constitute a taxable event to holders
of Capital Securities. Moreover, upon occurrence of a Special Event, a
dissolution of the Trust in which holders of the Capital Securities receive
cash would be a taxable event to such holders. See "Certain United States
Federal Income Taxation Consequences--Distribution of Junior Subordinated Debt
Securities or Cash Upon Liquidation of the Trust."
There can be no assurance as to the market prices for Capital
Securities or Junior Subordinated Debt Securities that may be distributed in
exchange for Capital Securities if a liquidation of the Trust occurs.
Accordingly, the Capital Securities or the Junior Subordinated Debt Securities
may trade at a discount to the price that the investor paid to purchase the
Capital Securities offered hereby. Because holders of Capital Securities may
receive Junior Subordinated Debt Securities on termination of the Trust,
prospective purchasers of Exchange Capital Securities are also making an
investment decision with regard to the Exchange Junior Subordinated Debt
Securities and should carefully review all the information regarding the
Exchange Junior Subordinated Debt Securities contained herein. See
"Description of Exchange Securities--Description of Exchange Capital
Securities--Description of Liquidation of the Trust and Distribution of Junior
Subordinated Debt Securities" and "--Description of Exchange Junior
Subordinated Debt Securities--General."
RIGHTS UNDER THE GUARANTEE
The Guarantee guarantees to the holders of the Capital Securities the
following payments, to the extent not paid by the Trust: (i) any accumulated
and unpaid Distributions required to be paid on the Capital Securities, to the
extent that the Trust has funds on hand available therefor at such time, (ii)
the applicable Redemption Price with respect to any Capital Securities called
for redemption, to the extent that the Trust has funds on hand available
therefor at such time, and (iii) upon a voluntary or involuntary dissolution,
winding-up or liquidation of the Trust (unless the Junior Subordinated Debt
Securities are distributed to holders of the Capital Securities), the lesser
of (a) the aggregate of the Liquidation Amount and all accumulated and unpaid
Distributions to the date of payment, to the extent that the Trust has funds
on hand available therefor at such time, and (b) the amount of assets of the
Trust remaining available for distribution to holders of the Capital
Securities after the satisfaction of liabilities to creditors of the Trust as
provided by applicable law.
The holders of not less than a majority in aggregate Liquidation
Amount of the Capital Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee (as defined herein) in respect of the Guarantee or to direct the
exercise of any trust power conferred upon the Guarantee Trustee under the
Guarantee. Any holder of the Capital Securities may institute a legal
proceeding directly against the Corporation to enforce its rights under the
Guarantee without first instituting a legal proceeding against the Trust, the
Guarantee Trustee or any other person or entity. If the Corporation were to
default on its obligation to pay amounts payable under the Junior Subordinated
Debt Securities, the Trust would lack funds for the payment of Distributions
or amounts payable on redemption of the Capital Securities or otherwise, and,
in such event, holders of the Capital Securities would not be able to rely
upon the Guarantee for payment of such amounts. Instead, in the event a
Debenture Event of Default shall have occurred and be continuing and such
event is attributable to the failure of the Corporation to pay
20
<PAGE> 21
principal of or interest on the Junior Subordinated Debt Securities on the
applicable payment date, then a holder of Capital Securities may institute a
Direct Action. Notwithstanding any payments made to a holder of Capital
Securities by the Corporation in connection with a Direct Action, the
Corporation shall remain obligated to pay the principal of and interest on the
Junior Subordinated Debt Securities, and the Corporation shall be subrogated
to the rights of the holder of such Capital Securities with respect to
payments on the Capital Securities to the extent of any payments made by the
Corporation to such holder in any Direct Action. Except as described herein,
holders of Capital Securities will not be able to exercise directly any other
remedy available to the holders of the Junior Subordinated Debt Securities or
assert directly any other rights in respect of the Junior Subordinated Debt
Securities. See "Description of Exchange Securities--Description of Exchange
Junior Subordinated Debt Securities--Enforcement of Certain Rights by Holders
of Exchange Capital Securities," "--Description of Exchange Junior
Subordinated Debt Securities--Debenture Events of Default" and "--Description
of Exchange Guarantee." The Declaration provides that each holder of Capital
Securities by acceptance thereof agrees to the provisions of the Guarantee and
the Indenture. Bankers Trust Company will act as Guarantee Trustee under the
Exchange Guarantee and will hold the Guarantee for the benefit of the holders
of the Capital Securities. Bankers Trust Company will also act as Property
Trustee under the Declaration and as Debenture Trustee under the Indenture.
LIMITED VOTING RIGHTS
Holders of Capital Securities will generally have limited voting
rights relating only to the modification of the Capital Securities, the
dissolution, winding-up or liquidation of the Trust, and the exercise of the
Trust's rights as holder of Junior Subordinated Debt Securities. The right to
vote to appoint, remove or replace the Property Trustee or the Delaware
Trustee is vested exclusively in the holder of the Common Securities except
upon the occurrence of certain events described herein. The Property Trustee,
the Administrative Trustees and the Corporation may amend the Declaration
without the consent of holders of Capital Securities to ensure that the Trust
will be classified for United States Federal income tax purposes as a grantor
trust, even if such action adversely affects the interests of such holders.
See "Description of Exchange Securities--Description of Exchange Capital
Securities--Removal of Issuer Trustees" and "--Voting Rights; Amendment of the
Declaration."
CONSEQUENCES OF A FAILURE TO EXCHANGE ORIGINAL CAPITAL SECURITIES
The Original Capital Securities have not been registered under the
Securities Act or any state securities laws and therefore may not be offered,
sold or otherwise transferred except in compliance with the registration
requirements of the Securities Act and any other applicable securities laws,
or pursuant to an exemption therefrom or in a transaction not subject thereto,
and in each case in compliance with certain other conditions and restrictions.
Original Capital Securities which remain outstanding after consummation of the
Exchange Offer will continue to bear a legend reflecting such restrictions on
transfer. In addition, upon consummation of the Exchange Offer, holders of
Original Capital Securities which remain outstanding will not be entitled to
any rights to have such Original Capital Securities registered under the
Securities Act or to any similar rights under the Registration
Agreement (subject to certain limited exceptions). The Corporation and the
Trust do not intend to register under the Securities Act any Original Capital
Securities which remain outstanding after consummation of the Exchange Offer
(subject to such limited exceptions, if applicable). To the extent that
Original Capital Securities are tendered and accepted in the Exchange Offer, a
holder's ability to sell untendered Original Capital Securities could be
adversely affected.
The Exchange Capital Securities and any Original Capital Securities
which remain outstanding after consummation of the Exchange Offer will vote
together as a single class for purposes of determining whether holders of the
requisite percentage in outstanding Liquidation Amount thereof have taken
certain actions or exercised certain rights under the Declaration. See
"Description of Exchange Securities--Description of Exchange Capital
Securities--Voting Rights; Amendment of the Declaration."
The Original Capital Securities provide, among other things, that, if
a registration statement relating to the Exchange Offer has not been filed by
May 30, 1997 and declared effective by June 30, 1997, the Distribution rate
borne by the Original Capital Securities commencing on July 1, 1997 will
increase by 0.25% per annum until the Exchange Offer is consummated. Upon
consummation of the Exchange Offer, holders of Original Capital Securities
will not be entitled to any increase in the Distribution rate thereon or any
further registration rights under the Registration Agreement, except
under limited circumstances. See "Description of Original Securities."
ABSENCE OF PUBLIC MARKET
The Original Capital Securities were issued to, and the Corporation
believes such securities are currently owned by, a relatively small number of
beneficial owners. The Original Capital Securities have not been registered
under the Securities Act and will be subject to restrictions on transferability
if they are not exchanged for the Exchange Capital Securities. Although the
Exchange Capital Securities may be resold or otherwise transferred by the
holders (who are not affiliates of the Corporation or the Trust) without
compliance with the registration requirements under the Securities Act, they
will constitute a new issue of securities with no established trading market.
Capital Securities may be transferred by the holders thereof only in blocks
having a Liquidation Amount of not less than $100,000 (100 Capital Securities).
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<PAGE> 22
The Corporation and the Trust have been advised by Salomon Brothers, Inc
and Keefe, Bruyette & Woods, Inc., (the "Initial Purchasers") that the Initial
Purchasers presently intend to make a market in the Exchange Capital Securities.
However, the Initial Purchasers are not obligated to do so and any
market-making activity with respect to the Exchange Capital Securities may be
discontinued at any time without notice. In addition, such market-making
activity will be subject to the limits imposed by the Securities Act and the
Exchange Act and may be limited during the Exchange Offer. Accordingly, no
assurance can be given that an active public or other market will develop for
the Exchange Capital Securities or the Original Capital Securities, or as to the
liquidity of or the trading market for the Exchange Capital Securities or the
Original Capital Securities. If an active public market does not develop, the
market price and liquidity of the Exchange Capital Securities may be adversely
affected.
If a public trading market develops for the Exchange Capital
Securities, future trading prices will depend on many factors, including, among
other things, prevailing interest rates, the financial condition of the
Corporation and the market for similar securities. Depending on these and other
factors, the Exchange Capital Securities may trade at a discount.
Notwithstanding the registration of the Exchange Capital Securities in
the Exchange Offer, holders who are "affiliates" (as defined under Rule 405 of
the Securities Act) of the Corporation or the Trust may publicly offer for sale
or resell the Exchange Capital Securities only in compliance with the provisions
of Rule 144 under the Securities Act.
Each broker-dealer that receives Exchange Capital Securities for its
own account in exchange for Original Capital Securities, where such Original
Capital Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange Capital
Securities. See "Plan of Distribution."
EXCHANGE OFFER PROCEDURES
Issuance of the Exchange Capital Securities in exchange for Original
Capital Securities pursuant to the Exchange Offer will be made only after a
timely receipt by the Trust of such Original Capital Securities, a properly
completed and duly executed Letter of Transmittal and all other required
documents. Therefore, holders of the Original Capital Securities desiring to
tender such Original Capital Securities in exchange for Exchange Capital
Securities should allow sufficient time to ensure timely delivery. Neither the
Corporation nor the Trust is under any duty to give notification of defects or
irregularities with respect to the tenders of Original Capital Securities for
exchange.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed charges
of the Corporation for the respective periods indicated.
<TABLE>
<CAPTION>
Ended December 31,
------------------------------------------
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratios of Earnings to Fixed Charges:
Excluding interest on deposits . . . 3.87 5.73 4.35 2.81 3.69
Including interest on deposits . . . 1.64 1.83 1.61 1.19 1.16
</TABLE>
For purposes of computing the ratios of earnings to fixed charges,
earnings represent net income before income taxes plus fixed charges. Fixed
charges excluding interest on deposits consist of interest on long-term debt and
short-term borrowings and one-third of rental expense (which is deemed
representative of the interest factor). Fixed charges including interest on
deposits consist of the foregoing items plus interest on deposits.
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<PAGE> 23
NORTH FORK CAPITAL TRUST I
The Trust is a statutory business trust formed under Delaware law
pursuant to (i) the original declaration of trust executed by the Corporation,
as Depositor, Bankers Trust (Delaware), as Delaware Trustee, and the
Administrative Trustees named therein, which original declaration of trust was
amended and restated and executed by the Corporation, as Depositor, Bankers
Trust Company, as Property Trustee, Bankers Trust (Delaware), as Delaware
Trustee, and the Administrative Trustees named therein (the "Declaration"), and
(ii) the filing of a certificate of trust with the Delaware Secretary of State
on December 23, 1996. The Trust exists for the exclusive purposes of (i) issuing
and selling the Trust Securities, (ii) using the proceeds from the sale of the
Trust Securities to acquire the Junior Subordinated Debt Securities and (iii)
engaging in only those other activities necessary, advisable or incidental
thereto (such as registering the transfer of the Capital Securities).
Accordingly, the Junior Subordinated Debt Securities are the sole assets of the
Trust, and payments under the Junior Subordinated Debt Securities are the sole
revenues of the Trust. All of the Common Securities are owned directly or
indirectly by the Corporation. The Common Securities will rank pari passu, and
payments are and will be made thereon pro rata, with the Capital Securities,
except that upon the occurrence and continuance of an Event of Default under the
Declaration resulting from a Debenture Event of Default, the rights of the
Corporation as holder of the Common Securities to payment in respect of
Distributions and payments upon liquidation, redemption or otherwise will be
subordinated to the rights of the holders of the Capital Securities. See
"Description of Exchange Securities--Description of Exchange Capital
Securities--Subordination of Common Securities." The Corporation has acquired
Common Securities in an aggregate Liquidation Amount equal to 3% of the total
capital of the Trust. The Trust has a term of 40 years, but may terminate
earlier as provided in the Declaration. The Trust's business and affairs are
conducted by its trustees, each appointed by the Corporation as holder of the
Common Securities. The trustees for the Trust will be Bankers Trust Company, as
the Property Trustee, Bankers Trust (Delaware), as the Delaware Trustee, and two
individual trustees as Administrative Trustees who are employees or officers of
or affiliated with the Corporation (collectively, the "Issuer Trustees").
Bankers Trust Company, as Property Trustee, currently acts as sole indenture
trustee under the Declaration. Bankers Trust Company also acts as trustee under
the Exchange Guarantee and the Indenture. See "--Description of Exchange Junior
Subordinated Debt Securities" and "--Description of Exchange Guarantee." The
holder of the Common Securities of the Trust, or the holders of a majority in
Liquidation Amount of the Capital Securities if an Event of Default under the
Declaration resulting from a Debenture Event of Default has occurred and is
continuing, is entitled to appoint, remove or replace the Property Trustee
and/or Delaware Trustee. In no event do the holders of the Capital Securities
have the right to vote to appoint, remove or replace the Administrative
Trustees; such voting rights are vested exclusively in the holder of the Common
Securities. The duties and obligations of each Issuer Trustee are governed by
the Declaration. Pursuant to the expense provisions under the Indenture, the
Corporation, as Issuer of the Junior Subordinated Debt Securities, has and will
continue to pay all fees and expenses related to the Trust and the offering of
the Capital Securities and has and will continue to pay, directly or indirectly,
all ongoing costs, expenses and liabilities of the Trust. See "--Description of
Exchange Capital Securities--Expenses and Taxes." The principal executive office
of the Trust is c/o North Fork Bancorporation, Inc., 275 Broad Hollow Road,
Melville, New York 11747. Telephone inquiries may be directed to Anthony Abate,
Senior Vice President and Secretary, at (516) 844-1004.
23
<PAGE> 24
NORTH FORK
North Fork, with its executive headquarters located in Melville, New
York, is a bank holding company organized under the laws of the State of
Delaware in 1980 and registered under the Bank Holding Company Act of 1956, as
amended. North Fork's primary subsidiary, North Fork Bank, operates eighty-two
retail banking facilities throughout Suffolk, Nassau, New York, Queens,
Westchester and Rockland Counties of New York. North Fork, through North Fork
Bank, provides a variety of banking and financial services to middle market and
small business organizations, local government units, and retail customers in
the metropolitan New York area. On December 31, 1996, North Side Savings Bank
("North Side") merged (the "Merger") with and into North Fork Bank, with North
Fork Bank surviving the Merger as a wholly owned subsidiary of North Fork. North
Side had $1.6 billion in total assets, $1.2 billion in deposit liabilities,
$124.4 million in capital and operated seventeen full-service banking locations
in the New York counties of Bronx, Queens, Nassau and Suffolk. North Fork issued
7.5 million shares of common stock in connection with this merger, which was
accounted for under the pooling-of-interests method of accounting, and
accordingly, the Registrant's consolidated financial statements include the
consolidated results of North Side. Immediately after the Merger, North Fork had
total assets and deposit liabilities of $5.8 billion and $4.5 billion,
respectively. The principal executive offices of North Fork are located at 275
Broad Hollow Road, Melville, New York 11747 and its telephone number is (516)
844-1004.
Acquisitions have been, and are expected to continue to be, an
important part of the expansion of the Corporation's business. During the first
quarter of 1996, North Fork Bank consummated the acquisition of the domestic
commercial banking business of Extebank, which at closing had approximately $388
million in total assets, $348 million in deposit liabilities, and $30 million
in capital, for $47 million in cash. During such quarter, North Fork Bank also
consummated the acquisition of ten Long Island branches of First Nationwide
Bank, with approximately $572 million in deposits, at a deposit premium of
6.35%, for $36 million in cash.
At December 31, 1996, North Fork had assets of $5.8 billion, deposit
liabilities of $4.5 billion and stockholders' equity of $457.5 million. On
December 20, 1996, the Corporation completed the public offering of 600,000
shares of its common stock held in treasury, for which it received aggregate
proceeds of approximately $19.7 million.
North Fork is a legal entity separate and distinct from its
subsidiaries. The ability of holders of debt and equity securities of North Fork
to benefit from the distribution of assets of any subsidiary upon the
liquidation or reorganization of such subsidiary is subordinate to prior claims
of creditors of the subsidiary (including depositors in the case of banking
subsidiaries) except to the extent that a claim of North Fork as a creditor
may be recognized.
There are various statutory and regulatory limitations on the extent
to which present and future banking subsidiaries of North Fork can finance or
otherwise transfer funds to North Fork or its nonbanking subsidiaries, whether
in the form of loans, extensions of credit, investments or asset purchases.
In addition, there are regulatory limitations on the payment of
dividends directly or indirectly to North Fork from its existing banking
subsidiary. Under applicable banking statutes, at January 1, 1997, North Fork's
banking subsidiary could have declared additional dividends of approximately
$55.6 million. However, Federal and state regulatory agencies also have the
authority to limit further North Fork's banking subsidiary's payment of
dividends based on other factors, such as the maintenance of adequate capital
for such subsidiary bank, which could reduce the amount of dividends otherwise
payable.
Under the policy of the Federal Reserve, North Fork is expected to act
as a source of financial strength to each subsidiary bank and to commit
resources to support such subsidiary bank in circumstances where North Fork
might not do so absent such policy. In addition, any subordinated loans by
North Fork to any subsidiary bank would also be subordinate in right of payment
to deposits and obligations to general creditors of such subsidiary bank.
24
<PAGE> 25
SELECTED HISTORICAL FINANCIAL INFORMATION
The following unaudited consolidated summary sets forth selected
financial data for North Fork and its subsidiaries for each of the years in the
five-year period ending December 31, 1996. The following summary should be read
in conjunction with the financial information incorporated herein by reference
to other documents. See "Incorporation of Certain Documents by Reference."
<TABLE>
<CAPTION>
(in thousands, except ratios and per share amounts)
YEARS ENDED DECEMBER 31,
----------------------------------------------------------------------------
1996 1995(1) 1994(1) 1993(1) 1992(1)
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
STATEMENT OF
INCOME DATA:
Interest Income (tax
equivalent basis) (2) $ 409,125 $ 334,462 $ 296,924 $ 290,534 $ 331,211
Interest Expense 174,361 140,399 112,576 117,153 175,937
----------------------------------------------------------------------------
Net Interest Income (tax
equivalent basis) 234,764 194,063 184,348 173,381 155,274
Less: Tax Equivalent Basis
Adjustment 3,818 1,970 1,862 1,489 1,557
----------------------------------------------------------------------------
Net Interest Income 230,946 192,093 182,486 171,892 153,717
Provision for Loan Losses 6,800 11,825 6,825 26,608 34,612
Non-Interest Income
Exclusive of Net
Securities
Gains/(Losses) 29,245 23,010 21,674 21,868 20,161
Net Securities
Gains/(Losses) 1,878 6,734 (9,189) 1,321 10,111
Other Real Estate Expenses 753 1,255 4,929 25,246 17,696
Merger Related Restructure
Charges 21,613 -- 14,338 -- 1,200
SAIF Recapitalization
Charge 8,350 -- -- -- --
Other Non-Interest
Expenses 112,281 91,565 99,338 117,316 101,605
----------------------------------------------------------------------------
Income Before Income
Taxes 112,272 117,192 69,541 25,911 28,876
Provision for Income Taxes 49,830 49,850 26,502 13,015 14,378
----------------------------------------------------------------------------
Net Income $ 62,442 $ 67,342 $ 43,039 $ 12,896 $ 14,498
============================================================================
AVERAGE BALANCE
SHEET DATA:
Securities 2,386,493 1,874,624 1,832,327 1,675,583 1,242,146
Loans, net 2,778,663 2,358,636 2,313,419 2,288,712 2,581,547
Total Assets 5,518,016 4,470,920 4,417,627 4,315,839 4,360,516
Total Deposits 4,373,570 3,634,149 3,600,686 3,671,336 3,897,054
Federal Funds Purchased &
Securities Sold Under
Agreements to
Repurchase 610,960 350,393 378,198 220,120 82,791
Other Borrowings 38,934 36,397 49,044 36,559 55,190
Stockholders' Equity 431,376 389,095 338,826 304,108 267,239
BALANCE SHEET
DATA AT DECEMBER
31:
Securities 2,157,506 2,235,339 1,766,235 1,782,271 1,454,235
Loans, net 3,171,525 2,400,282 2,303,920 2,128,808 2,419,107
Total Assets 5,750,527 4,890,866 4,258,827 4,268,034 4,178,229
Total Deposits 4,469,510 3,739,720 3,538,768 3,633,619 3,736,054
Federal Funds Purchased &
Securities Sold Under
Agreements to
Repurchase 621,789 642,369 246,875 255,643 50,476
Other Borrowings 35,000 35,000 75,000 33,000 53,000
</TABLE>
25
<PAGE> 26
<TABLE>
<CAPTION>
(in thousands, except ratios and per share amounts)
YEARS ENDED DECEMBER 31,
-------------------------------------------------------------------------------
1996 1995(1) 1994(1) 1993(1) 1992(1)
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Company-Obligated
Mandatorily
Redeemable Capital
Securities of Subsidiary
Trust 99,637 -- -- -- --
Stockholders' Equity 457,531 426,129 355,921 314,263 282,886
PER SHARE (6)
Net Income (3) $ 1.94 $ 2.09 $ 1.38 $ 0.42 $ 0.54
Cash Dividends (4) 0.85 0.55 0.35 -- --
Book Value at
December 31 14.10 13.19 11.68 10.55 10.3
Market Price at
December 31 35.63 25.25 13.75 12.88 8.13
SELECTED RATIOS:
Return on Average Total
Assets (3) 1.13% 1.51% 0.97% 0.30% 0.33%
Return on Average
Stockholders' Equity
(3) 14.48% 17.31% 12.70% 4.24% 5.43%
Core Efficiency Ratio (5) 42.53% 42.18% 48.22% 55.97% 57.92%
Net Interests Margin 4.50% 4.56% 4.38% 4.26% 3.74%
Average Stockholders'
Equity to Average Total
Assets 7.82% 8.70% 7.67% 7.05% 6.13%
Tier I Capital Ratio 15.12% 15.64% 14.44% 12.25% 9.59%
Risk Adjusted Capital Ratio 16.38% 16.90% 15.71% 13.52% 10.85%
Leverage Ratio 8.61% 8.25% 7.73% 6.56% 5.79%
Allowance for Loan
Losses/Non-Performing
Loans 265% 151% 109% 89% 46%
Non-Performing Assets to
Total Assets 0.39% 0.92% 1.62% 2.26% 5.02%
AVERAGE
EQUIVALENT
SHARES
OUTSTANDING (6) 32,139 32,216 31,156 30,563 26,988
NUMBER OF BRANCH
OFFICES OF THE
CORPORATION 82 67 63 52 54
</TABLE>
(1) On December 31, 1996, North Side Savings Bank ("North Side") was merged with
and into the Corporation. On November 30, 1994, Metro Bancshares Inc. ("Metro")
was merged with and into the Corporation. These mergers have been accounted for
as pooling-of-interests transactions and, accordingly, the financial results for
all periods reported have been retroactively restated to include North Side (See
Note 2(a) of the notes to consolidated financial statements, which are included
in documents incorporated by reference herein) and Metro.
(2) Interest income on a tax equivalent basis includes the additional amount of
interest income that would have been earned if the Corporation's investment in
state and municipal obligations and tax-exempt loans had been made in investment
securities and loans subject to New York State, New York City and Federal income
taxes yielding the same after tax income.
(3) Net income per share exclusive of the nonrecurring SAIF Recapitalization and
Merger Related Restructure charge was $2.66 for 1996. The return on average
total assets and the return on average stockholders' equity, as adjusted for the
aforementioned charges, would have been 1.55% and 19.85%, respectively.
(4) Cash dividends do not reflect dividends declared by North Side and Metro
prior to their respective merger dates.
(5) The core efficiency ratio is defined as the ratio of non-interest expense
net of other real estate expenses and other non-recurring charges, to net
interest income on a taxable equivalent basis and other non-interest income net
of net securities gains/(losses).
(6) On February 25, 1997, the Board of Directors of the Corporation approved a
two-for-one common stock split, subject to the approval of an increase in the
Corporation's authorized common stock to 200 million shares from 50 million
shares by its Shareholders at the annual meeting scheduled for April 22, 1997.
If the Shareholder proposal is approved, the new shares will be distributed on
May 15, 1997 to shareholders of record on April 25, 1997.
26
<PAGE> 27
CAPITALIZATION
The following table sets forth the consolidated capitalization of North
Fork at December 31, 1996. The issuance of the Exchange Capital Securities in
the Exchange Offer will have no effect on the capitalization of the Corporation.
This table is based on, and is qualified in its entirety by, the historical
consolidated financial statements of North Fork, including the related notes
thereto, which are included in documents incorporated by reference herein, and
should be read in conjunction therewith.
<TABLE>
<CAPTION>
(Dollars in thousands)
<S> <C>
Senior Note Payable ............................... $ 25,000
Other Long-Term Borrowings ........................ 430,500
---------
Total Long Term Borrowings ............... 455,500
=========
Company-Obligated Mandatorily Redeemable Capital
Securities of Subsidiary Trust (1) ......... 99,637
---------
Stockholders' Equity
Preferred Stock, par value $1.00; authorized
10,000,000 shares; unissued .............. --
Common Stock, par value $2.50; authorized
50,000,000 shares, issued 32,599,504
shares (2) ...................... 81,499
Additional Paid-in Capital ........................ 180,809
Retained Earnings ................................. 206,895
Unrealized Losses on Securities
Available-for-Sale, net of taxes ........... (2,633)
Deferred Compensation ............................. (5,193)
Treasury Stock at cost; 153,289 shares ............ (3,846)
---------
Total Stockholders' Equity ............... $ 457,531
=========
Capital Ratios:
Equity/Assets .............................. 7.96%
Tier 1 Capital Ratios ...................... 15.12%
Risk Adjusted Capital Ratios ............... 16.38%
Leverage Ratio ............................. 8.61%
</TABLE>
(1) The "Company-Obligated Mandatorily Redeemable Capital Securities of
Subsidiary Trust" reflects the issuance of the Original Capital
Securities. As described herein, the sole assets of the Trust will be
approximately $103.1 million of Junior Subordinated Debt Securities
(including the amounts attributable to the issuance of the Common
Securities of the Trust), which will mature on December 15, 2026. The
Corporation owns all of the Common Securities of the Trust. It is
anticipated that the Trust will not be subject to the reporting
requirements under the Securities Exchange Act of 1934.
(2) On February 25, 1997, the Board of Directors of the Corporation approved
a two-for-one common stock split, subject to the approval of an increase
in the Corporation's authorized common stock to 200 million shares from
50 million shares by its Shareholders at the annual meeting scheduled for
April 22, 1997. If the Shareholder proposal is approved, the new shares
will be distributed on May 15, 1997 to shareholders of record on April
25, 1997.
27
<PAGE> 28
ACCOUNTING TREATMENT
The financial statements of the Trust are consolidated into the
Corporation's consolidated financial statements, with the Capital Securities
treated as minority interest and shown in the Corporation's consolidated balance
sheet as "Company-Obligated Mandatorily Redeemable Securities of Subsidiary
Trust." The financial statement footnotes in the 1996 Annual Report of the
Corporation reflect that the sole asset of the Trust is approximately $103.1
million principal amount of the Junior Subordinated Debt Securities, bearing
interest at 8.70% and maturing on December 15, 2026. All future reports filed by
the Corporation under the Exchange Act will present information regarding the
Trust and other similar trusts in the manner described above.
28
<PAGE> 29
THE EXCHANGE OFFER
PURPOSE OF THE EXCHANGE OFFER
In connection with the sale of the Original Capital Securities, the
Corporation and the Trust entered into the Registration Agreement with
the Initial Purchasers, pursuant to which the Corporation and the Trust agreed
to file and to use their reasonable efforts to cause to become effective with
the Commission a registration statement with respect to the exchange of the
Original Capital Securities for capital securities with terms identical in all
material respects to the terms of the Original Capital Securities. A copy of the
Registration Agreement has been filed as an Exhibit to the Registration
Statement of which this Prospectus is a part.
The Exchange Offer is being made to satisfy the contractual obligations
of the Corporation and the Trust under the Registration Agreement. The form and
terms of the Exchange Capital Securities are the same as the form and terms of
the Original Capital Securities except that the Exchange Capital Securities have
been registered under the Securities Act and will not be subject to the $100,000
minimum Liquidation Amount transfer restriction and certain other restrictions
on transfer applicable to the Original Capital Securities, and will not provide
for any increase in the Distribution rate thereon. In that regard, the Original
Capital Securities provide, among other things, that, if a registration
statement relating to the Exchange Offer has not been filed by May 30, 1997 and
declared effective by June 30, 1997, the Distribution rate borne by the Original
Capital Securities commencing on July 1, 1997 will increase by 0.25% per annum
until the Exchange Offer is consummated. Upon consummation of the Exchange
Offer, holders of Original Capital Securities will not be entitled to any
increase in the Distribution rate thereon or any further registration rights
under the Registration Agreement, except under limited circumstances. See "Risk
Factors--Consequences of a Failure to Exchange Original Capital Securities" and
"Description of Original Securities."
The Exchange Offer is not being made to, nor will the Trust accept
tenders for exchange from, holders of Original Capital Securities in any
jurisdiction in which the Exchange Offer or the acceptance thereof would not be
in compliance with the securities or blue sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder" with respect
to the Exchange Offer means any person in whose name the Original Capital
Securities are registered on the books of the Trust or any other person who has
obtained a properly completed bond power from the registered holder, or any
person whose Original Capital Securities are held of record by The Depository
Trust Company ("DTC") who desires to deliver such Original Capital Securities by
book-entry transfer at DTC.
Pursuant to the Exchange Offer, the Corporation will exchange as soon
as practicable after the date hereof, the Original Guarantee for the Exchange
Guarantee and the Original Junior Subordinated Debt Securities, in an amount
corresponding to the Original Capital Securities accepted for exchange, for a
like aggregate principal amount of the Exchange Junior Subordinated Debt
Securities. The Exchange Guarantee and Exchange Junior Subordinated Debt
Securities have been registered under the Securities Act.
TERMS OF THE EXCHANGE OFFER
The Trust hereby offers, upon the terms and subject to the conditions
set forth in this Prospectus and in the accompanying Letter of Transmittal, to
exchange up to $100,000,000 aggregate Liquidation Amount of Exchange Capital
Securities for a like aggregate Liquidation Amount of Original Capital
Securities properly tendered on or prior to the Expiration Date and not properly
withdrawn in accordance with the procedures described below. The Trust will
issue, promptly after the Expiration Date, an aggregate Liquidation Amount of up
to $100,000,000 of Exchange Capital Securities in exchange for a like principal
amount of outstanding Original Capital Securities tendered and accepted in
29
<PAGE> 30
connection with the Exchange Offer. Holders may tender their Original Capital
Securities in whole or in part in a Liquidation Amount of not less than $100,000
(100 Capital Securities) or any integral multiple of $1,000 Liquidation Amount
(one Capital Security) in excess thereof.
The Exchange Offer is not conditioned upon any minimum Liquidation
Amount of Original Capital Securities being tendered. As of the date of this
Prospectus, $100,000,000 aggregate Liquidation Amount of the Original Capital
Securities is outstanding.
Holders of Original Capital Securities do not have any appraisal or
dissenters' rights in connection with the Exchange Offer. Original Capital
Securities which are not tendered for or are tendered but not accepted in
connection with the Exchange Offer will remain outstanding and be entitled to
the benefits of the Declaration, but will not be entitled to any further
registration rights under the Registration Agreement, except under limited
circumstances. See "Risk Factors--Consequences of a Failure to Exchange Original
Capital Securities" and "Description of Original Securities."
If any tendered Original Capital Securities are not accepted for
exchange because of an invalid tender, the occurrence of certain other events
set forth herein or otherwise, certificates for any such unaccepted Original
Capital Securities will be returned, without expense, to the tendering holder
thereof promptly after the Expiration Date.
Holders who tender Original Capital Securities in connection with the
Exchange Offer will not be required to pay brokerage commissions or fees or,
subject to the instructions in the Letter of Transmittal, transfer taxes with
respect to the exchange of Original Capital Securities in connection with the
Exchange Offer. The Corporation will pay all charges and expenses, other than
certain applicable taxes described below, in connection with the Exchange Offer.
See "--Fees and Expenses."
NEITHER THE CORPORATION, THE BOARD OF DIRECTORS OF THE CORPORATION NOR
ANY ISSUER TRUSTEE OF THE TRUST MAKES ANY RECOMMENDATION TO HOLDERS OF ORIGINAL
CAPITAL SECURITIES AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING ALL OR ANY
PORTION OF THEIR ORIGINAL CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER. IN
ADDITION, NO ONE HAS BEEN AUTHORIZED TO MAKE ANY SUCH RECOMMENDATION. HOLDERS OF
ORIGINAL CAPITAL SECURITIES MUST MAKE THEIR OWN DECISIONS WHETHER TO TENDER
PURSUANT TO THE EXCHANGE OFFER AND, IF SO, THE AGGREGATE AMOUNT OF ORIGINAL
CAPITAL SECURITIES TO TENDER BASED ON SUCH HOLDERS' OWN FINANCIAL POSITIONS AND
REQUIREMENTS.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS.
The term "Expiration Date" means 5:00 p.m., New York City time, on
,1997 unless the Exchange Offer is extended by the Corporation or the
Trust (in which case the term "Expiration Date" shall mean the latest date and
time to which the Exchange Offer is extended).
The Corporation and the Trust expressly reserve the right in their sole
and absolute discretion, subject to applicable law, at any time and from time to
time, (i) to delay the acceptance of the Original Capital Securities for
exchange, (ii) to terminate the Exchange Offer (whether or not any Original
Capital Securities have theretofore been accepted for exchange) if the Trust
determines, in its sole and absolute discretion, that any of the events or
conditions referred to under "--Conditions to the Exchange Offer" have occurred
or exist or have not been satisfied, (iii) to extend the Expiration Date of the
Exchange Offer and retain all Original Capital Securities tendered pursuant to
the Exchange Offer, subject, however, to the right of holders of Original
Capital Securities to withdraw their tendered Original Capital Securities as
described under "--Withdrawal Rights," and (iv) to waive any condition or
otherwise amend the terms of the Exchange Offer in any respect. If the Exchange
Offer is amended in a manner determined by the Corporation and the Trust to
constitute a material change, or if the Corporation and the Trust waive a
material condition of the Exchange Offer, the Corporation and the Trust will
promptly disclose such amendment by means of a prospectus supplement that will
be distributed to the holders of the Original Capital Securities, and the
Corporation and the Trust will extend the Exchange Offer to the extent required
by Rule 14e-1 under the Exchange Act.
Any such delay in acceptance, extension, termination or amendment will
be followed promptly by oral or written notice thereof to the Exchange Agent and
by making a public announcement thereof, and such announcement in the case of an
extension will be made no later than 9:00 a.m., New York City time, on the next
business day after the previously scheduled Expiration Date. Without limiting
the manner in which the Corporation and the Trust may choose to make any public
announcement and subject to applicable law, the Corporation and the Trust shall
have no obligation to publish, advertise or otherwise communicate any such
public announcement other than by issuing a release to an appropriate news
agency.
30
<PAGE> 31
ACCEPTANCE FOR EXCHANGE AND ISSUANCE OF EXCHANGE CAPITAL SECURITIES
Upon the terms and subject to the conditions of the Exchange Offer, the
Trust will exchange, and will issue to the Exchange Agent, Exchange Capital
Securities for Original Capital Securities validly tendered and not withdrawn
promptly after the Expiration Date.
In all cases, delivery of Exchange Capital Securities in exchange for
Original Capital Securities tendered and accepted for exchange pursuant to the
Exchange Offer will be made only after timely receipt by the Exchange Agent of
(i) Original Capital Securities or a book-entry confirmation of a book-entry
transfer of Original Capital Securities into the Exchange Agent's account at
DTC, (ii) the Letter of Transmittal (or facsimile thereof), properly completed
and duly executed, with any required signature guarantees, and (iii) any other
documents required by the Letter of Transmittal.
The term "book-entry confirmation" means a timely confirmation of a
book-entry transfer of Original Capital Securities into the Exchange Agent's
account at DTC.
Subject to the terms and conditions of the Exchange Offer, the Trust
will be deemed to have accepted for exchange, and thereby exchanged, Original
Capital Securities validly tendered and not withdrawn as, if and when the Trust
gives oral or written notice to the Exchange Agent of the Trust's acceptance of
such Original Capital Securities for exchange pursuant to the Exchange Offer.
The Exchange Agent will act as agent for the Trust for the purpose of receiving
tenders of Original Capital Securities, Letters of Transmittal and related
documents, and as agent for tendering holders for the purpose of receiving
Original Capital Securities, Letters of Transmittal and related documents and
transmitting Exchange Capital Securities to validly tendering holders. Such
exchange will be made promptly after the Expiration Date. If for any reason
whatsoever, acceptance for exchange or the exchange of any Original Capital
Securities tendered pursuant to the Exchange Offer is delayed (whether before or
after the Trust's acceptance for exchange of Original Capital Securities) or the
Trust extends the Exchange Offer or is unable to accept for exchange or exchange
Original Capital Securities tendered pursuant to the Exchange Offer, then,
without prejudice to the Trust's rights set forth herein, the Exchange Agent
may, nevertheless, on behalf of the Trust and subject to Rule 14e-1(c) under the
Exchange Act, retain tendered Original Capital Securities and such Original
Capital Securities may not be withdrawn except to the extent tendering holders
are entitled to withdrawal rights as described under "--Withdrawal Rights."
Pursuant to the Letter of Transmittal, a holder of Original Capital
Securities will warrant and agree in the Letter of Transmittal that it has full
power and authority to tender, exchange, sell, assign and transfer Original
Capital Securities, that the Trust will acquire good, marketable and
unencumbered title to the tendered Original Capital Securities, free and clear
of all liens, restrictions, charges and encumbrances, and the Original Capital
Securities tendered for exchange are not subject to any adverse claims or
proxies. The holder also will warrant and agree that it will, upon request,
execute and deliver any additional documents deemed by the Trust or the Exchange
Agent to be necessary or desirable to complete the exchange, sale, assignment,
and transfer of the Original Capital Securities tendered pursuant to the
Exchange Offer.
PROCEDURES FOR TENDERING ORIGINAL CAPITAL SECURITIES
VALID TENDER. Except as set forth below, in order for Original Capital
Securities to be validly tendered pursuant to the Exchange Offer, a properly
completed and duly executed Letter of Transmittal (or facsimile thereof), with
any required signature guarantees and any other required documents, must be
received by the Exchange Agent at one of its addresses set forth under
"--Exchange Agent," and either (i) tendered Original Capital Securities must be
received by the Exchange Agent, or (ii) such Original Capital Securities must be
tendered pursuant to the procedures for book-entry transfer set forth below and
a book-entry confirmation must be received by the Exchange Agent, in each case
on or prior to the Expiration Date, or (iii) the guaranteed delivery procedures
set forth below must be complied with.
If less than all of the Original Capital Securities are tendered, a
tendering holder should fill in the amount of Original Capital Securities being
tendered in the appropriate box on the Letter of Transmittal. The entire amount
of Original Capital Securities delivered to the Exchange Agent will be deemed to
have been tendered unless otherwise indicated.
THE METHOD OF DELIVERY OF CERTIFICATES, THE LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING
HOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL, RETURN RECEIPT
REQUESTED, PROPERLY INSURED, OR AN OVERNIGHT DELIVERY SERVICE IS RECOMMENDED. IN
ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
31
<PAGE> 32
BOOK-ENTRY TRANSFER. The Exchange Agent will establish an account with
respect to the Original Capital Securities at DTC for purposes of the Exchange
Offer within two business days after the date of this Prospectus. Any financial
institution that is a participant in DTC's book-entry transfer facility system
may make a book-entry delivery of the Original Capital Securities by causing DTC
to transfer such Original Capital Securities into the Exchange Agent's account
at DTC in accordance with DTC's procedures for transfers. However, although
delivery of Original Capital Securities may be effected through book-entry
transfer into the Exchange Agent's account at DTC, the Letter of Transmittal (or
facsimile thereof), properly completed and duly executed, with any required
signature guarantees and any other required documents, must in any case be
delivered to and received by the Exchange Agent at its address set forth under
"--Exchange Agent" on or prior to the Expiration Date, or the guaranteed
delivery procedure set forth below must be complied with.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES
NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
SIGNATURE GUARANTEES. Certificates for the Original Capital Securities
need not be endorsed and signature guarantees on the Letter of Transmittal are
unnecessary unless (a) a certificate for the Original Capital Securities is
registered in a name other than that of the person surrendering the certificate
or (b) such holder completes the box entitled "Special Issuance Instructions" or
"Special Delivery Instructions" in the Letter of Transmittal. In the case of (a)
or (b) above, such certificates for Original Capital Securities must be duly
endorsed or accompanied by a properly executed bond power, with the endorsement
or signature on the bond power and on the Letter of Transmittal guaranteed by a
firm or other entity identified in Rule 17Ad-15 under the Exchange Act as an
"eligible guarantor institution," including (as such terms are defined therein):
(i) a bank; (ii) a broker, dealer, municipal securities broker or dealer or
government securities broker or dealer; (iii) a credit union; (iv) a national
securities exchange, registered securities association or clearing agency; or
(v) a savings association that is a participant in a Securities Transfer
Association (an "Eligible Institution"), unless surrendered on behalf of such
Eligible Institution. See Instruction 1 to the Letter of Transmittal.
GUARANTEED DELIVERY. If a holder desires to tender Original Capital
Securities pursuant to the Exchange Offer and the certificates for such Original
Capital Securities are not immediately available or time will not permit all
required documents to reach the Exchange Agent on or prior to the Expiration
Date, or the procedure for book-entry transfer cannot be completed on a timely
basis, such Original Capital Securities may nevertheless be tendered, provided
that all of the following guaranteed delivery procedures are complied with:
(1) such tenders are made by or through an Eligible Institution;
(2) properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form accompanying the Letter of Transmittal, is received by
the Exchange Agent, as provided below, on or prior to the Expiration Date;
(3) the certificates (or a book-entry confirmation) representing all
tendered Original Capital Securities, in proper form for transfer, together with
a properly completed and duly executed Letter of Transmittal (or facsimile
thereof), with any required signature guarantees and any other documents
required by the Letter of Transmittal, are received by the Exchange Agent within
three New York Stock Exchange trading days after the date of execution of such
Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand, or
transmitted by facsimile or mail to the Exchange Agent and must include a
guarantee by an Eligible Institution in the form set forth in such notice.
Notwithstanding any other provision hereof, the delivery of Exchange
Capital Securities in exchange for Original Capital Securities tendered and
accepted for exchange pursuant to the Exchange Offer will in all cases be made
only after timely receipt by the Exchange Agent of Original Capital Securities,
or of a book-entry confirmation with respect to such Original Capital
Securities, and a properly completed and duly executed Letter of Transmittal (or
facsimile thereof), together with any required signature guarantees and any
other documents required by the Letter of Transmittal. Accordingly, the delivery
of Exchange Capital Securities might not be made to all tendering holders at the
same time, and will depend upon when Original Capital Securities, book-entry
confirmations with respect to Original Capital Securities and other required
documents are received by the Exchange Agent.
The Trust's acceptance for exchange of Original Capital Securities
tendered pursuant to any of the procedures described above will constitute a
binding agreement between the tendering holder and the Trust upon the terms and
subject to the conditions of the Exchange Offer.
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DETERMINATION OF VALIDITY. All questions as to the form of documents,
validity, eligibility (including time of receipt) and acceptance for exchange of
any tendered Original Capital Securities will be determined by the Corporation
and the Trust, in their sole discretion, whose determination shall be final and
binding on all parties. The Corporation and the Trust reserve the absolute
right, in their sole and absolute discretion, to reject any and all tenders
determined by them not to be in proper form or the acceptance of which, or
exchange for, may, in the opinion of counsel to the Corporation and the Trust,
be unlawful. The Corporation and the Trust also reserve the absolute right,
subject to applicable law, to waive any of the conditions of the Exchange Offer
as set forth under "--Conditions to the Exchange Offer" or any condition or
irregularity in any tender of Original Capital Securities of any particular
holder whether or not similar conditions or irregularities are waived in the
case of other holders.
The interpretation by the Corporation and the Trust of the terms and
conditions of the Exchange Offer (including the Letter of Transmittal and the
instructions thereto) will be final and binding. No tender of Original Capital
Securities will be deemed to have been validly made until all irregularities
with respect to such tender have been cured or waived. Neither the Corporation,
the Trust, any affiliates or assigns of the Corporation or the Trust, the
Exchange Agent nor any other person shall be under any duty to give any
notification of any irregularities in tenders or incur any liability for failure
to give any such notification.
If any Letter of Transmittal, endorsement, bond power, power of
attorney, or any other document required by the Letter of Transmittal is signed
by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and unless waived by the
Corporation and the Trust, proper evidence satisfactory to the Corporation and
the Trust, in their sole discretion, of such person's authority to so act must
be submitted.
A beneficial owner of Original Capital Securities that are held by or
registered in the name of a broker, dealer, commercial bank, trust company or
other nominee or custodian is urged to contact such entity promptly if such
beneficial holder wishes to participate in the Exchange Offer.
RESALES OF EXCHANGE CAPITAL SECURITIES
The Trust is making the Exchange Offer for the Exchange Capital
Securities in reliance on the position of the staff of the Division of
Corporation Finance of the Commission as set forth in certain interpretive
letters addressed to third parties in other transactions. However, neither the
Corporation nor the Trust sought its own interpretive letter and there can be no
assurance that the staff of the Division of Corporation Finance of the
Commission would make a similar determination with respect to the Exchange Offer
as it has in such interpretive letters to third parties. Based on these
interpretations by the staff of the Division of Corporation Finance of the
Commission, and subject to the two immediately following sentences, the
Corporation and the Trust believe that Exchange Capital Securities issued
pursuant to this Exchange Offer in exchange for Original Capital Securities may
be offered for resale, resold and otherwise transferred by a holder thereof
(other than a holder who is a broker-dealer) without further compliance with the
registration and prospectus delivery requirements of the Securities Act,
provided that such Exchange Capital Securities are acquired in the ordinary
course of such holder's business and that such holder is not participating, and
has no arrangement or understanding with any person to participate, in a
distribution (within the meaning of the Securities Act) of such Exchange Capital
Securities. However, any holder of Original Capital Securities who is an
"affiliate" of the Corporation or the Trust or who intends to participate in the
Exchange Offer for the purpose of distributing Exchange Capital Securities, or
any broker-dealer who purchased Original Capital Securities from the Trust to
resell pursuant to Rule 144A or any other available exemption under the
Securities Act, (a) will not be able to rely on the interpretations of the staff
of the Division of Corporation Finance of the Commission set forth in the
above-mentioned interpretive letters, (b) will not be permitted or entitled to
tender such Original Capital Securities in the Exchange Offer and (c) must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any sale or other transfer of such Original
Capital Securities unless such sale is made pursuant to an exemption from such
requirements. In addition, as described below, if any broker-dealer holds
Original Capital Securities acquired for its own account as a result of
market-making or other trading activities and exchanges such Original Capital
Securities for Exchange Capital Securities, then such broker-dealer must deliver
a prospectus meeting the requirements of the Securities Act in connection with
any resales of such Exchange Capital Securities.
Each holder of Original Capital Securities who wishes to exchange
Original Capital Securities for Exchange Capital Securities in the Exchange
Offer will be required to represent that (i) it is not an "affiliate" of the
Corporation or the Trust, (ii) any Exchange Capital Securities to be received by
it are being acquired in the ordinary course of its business, (iii) it has no
arrangement or understanding with any person to participate in a distribution
(within the meaning of the Securities Act) of such Exchange Capital Securities,
and (iv) if such holder is not a broker-dealer, such holder is
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not engaged in, and does not intend to engage in, a distribution (within the
meaning of the Securities Act) of such Exchange Capital Securities. In addition,
the Corporation and the Trust may require such holder, as a condition to such
holder's eligibility to participate in the Exchange Offer, to furnish to the
Corporation and the Trust (or an agent thereof) in writing information as to the
number of "beneficial owners" (within the meaning of Rule 13d-3 under the
Exchange Act) on behalf of whom such holder holds the Capital Securities to be
exchanged in the Exchange Offer. Each broker-dealer that receives Exchange
Capital Securities for its own account pursuant to the Exchange Offer must
acknowledge that it acquired the Original Capital Securities for its own account
as the result of market-making activities or other trading activities and must
agree that it will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Capital
Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act. Based on the position
taken by the staff of the Division of Corporation Finance of the Commission in
the interpretive letters referred to above, the Corporation and the Trust
believe that Participating Broker-Dealers who acquired Original Capital
Securities for their own accounts as a result of market-making activities or
other trading activities may fulfill their prospectus delivery requirements with
respect to the Exchange Capital Securities received upon exchange of such
Original Capital Securities (other than Original Capital Securities which
represent an unsold allotment from the initial sale of the Original Capital
Securities) with a prospectus meeting the requirements of the Securities Act,
which may be the prospectus prepared for an exchange offer so long as it
contains a description of the plan of distribution with respect to the resale of
such Exchange Capital Securities. Accordingly, this Prospectus, as it may be
amended or supplemented from time to time, may be used by a Participating
Broker-Dealer during the period referred to below in connection with resales of
Exchange Capital Securities received in exchange for Original Capital Securities
where such Original Capital Securities were acquired by such Participating
Broker-Dealer for its own account as a result of market-making or other trading
activities. Subject to certain provisions set forth in the Registration
Agreement, the Corporation and the Trust have agreed that this Prospectus, as it
may be amended or supplemented from time to time, may be used by a Participating
Broker-Dealer in connection with resales of such Exchange Capital Securities for
a period ending 180 days after the Expiration Date (subject to extension under
certain limited circumstances described below) or, if earlier, when all such
Exchange Capital Securities have been disposed of by such Participating
Broker-Dealer. See "Plan of Distribution." However, a Participating
Broker-Dealer who intends to use this Prospectus in connection with the resale
of Exchange Capital Securities received in exchange for Original Capital
Securities pursuant to the Exchange Offer must notify the Corporation or the
Trust, or cause the Corporation or the Trust to be notified, on or prior to the
Expiration Date, that it is a Participating Broker-Dealer. Such notice may be
given in the space provided for that purpose in the Letter of Transmittal or may
be delivered to the Exchange Agent at one of the addresses set forth herein
under "--Exchange Agent." Any Participating Broker-Dealer who is an "affiliate"
of the Corporation or the Trust may not rely on such interpretive letters and
must comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any resale transaction.
In that regard, each Participating Broker-Dealer who surrenders
Original Capital Securities pursuant to the Exchange Offer will be deemed to
have agreed, by execution of the Letter of Transmittal, that upon receipt of
notice from the Corporation or the Trust of the occurrence of any event or the
discovery of (i) any fact which makes any statement contained or incorporated by
reference in this Prospectus untrue in any material respect or (ii) any fact
which causes this Prospectus to omit to state a material fact necessary in order
to make the statements contained or incorporated by reference herein, in light
of the circumstances under which they were made, not misleading, or (iii) of the
occurrence of certain other events specified in the Registration Agreement, such
Participating Broker-Dealer will suspend the sale of Exchange Capital Securities
(or the Exchange Guarantee or the Exchange Junior Subordinated Debt Securities,
as applicable) pursuant to this Prospectus until the Corporation or the Trust
has amended or supplemented this Prospectus to correct such misstatement or
omission and has furnished copies of the amended or supplemented Prospectus to
such Participating Broker-Dealer, or the Corporation or the Trust has given
notice that the sale of the Exchange Capital Securities (or the Exchange
Guarantee or the Exchange Junior Subordinated Debt Securities, as applicable)
may be resumed, as the case may be. If the Corporation or the Trust gives such
notice to suspend the sale of the Exchange Capital Securities (or the Exchange
Guarantee or the Exchange Junior Subordinated Debt Securities, as applicable),
it shall extend the 180-day period referred to above during which Participating
Broker-Dealers are entitled to use this Prospectus in connection with the resale
of Exchange Capital Securities by the number of days during the period from and
including the date of the giving of such notice to and including the date when
Participating Broker-Dealers shall have received copies of the amended or
supplemented Prospectus necessary to permit resales of the Exchange Capital
Securities or to and including the date on which the Corporation or the Trust
has given notice that the sale of Exchange Capital Securities (or the Exchange
Guarantee or the Exchange Junior Subordinated Debt Securities, as applicable)
may be resumed, as the case may be.
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WITHDRAWAL RIGHTS
Except as otherwise provided herein, tenders of Original Capital
Securities may be withdrawn at any time on or prior to the Expiration Date.
In order for a withdrawal to be effective, a written, telegraphic,
telex or facsimile transmission of such notice of withdrawal must be timely
received by the Exchange Agent at one of its addresses set forth under
"--Exchange Agent" on or prior to the Expiration Date. Any such notice of
withdrawal must specify the name of the person who tendered the Original Capital
Securities to be withdrawn, the aggregate principal amount of Original Capital
Securities to be withdrawn, and (if certificates for such Original Capital
Securities have been tendered) the name of the registered holder of the Original
Capital Securities as set forth on the Original Capital Securities, if different
from that of the person who tendered such Original Capital Securities. If
Original Capital Securities have been delivered or otherwise identified to the
Exchange Agent, then prior to the physical release of such Original Capital
Securities, the tendering holder must submit the serial numbers shown on the
particular Original Capital Securities to be withdrawn and the signature on the
notice of withdrawal must be guaranteed by an Eligible Institution, except in
the case of Original Capital Securities tendered for the account of an Eligible
Institution. If Original Capital Securities have been tendered pursuant to the
procedures for book-entry transfer set forth in "--Procedures for Tendering
Original Capital Securities," the notice of withdrawal must specify the name and
number of the account at DTC to be credited with the withdrawal of Original
Capital Securities, in which case a notice of withdrawal will be effective if
delivered to the Exchange Agent by written, telegraphic, telex or facsimile
transmission. Withdrawals of tenders of Original Capital Securities may not be
rescinded. Original Capital Securities properly withdrawn will not be deemed
validly tendered for purposes of the Exchange Offer, but may be retendered at
any subsequent time on or prior to the Expiration Date by following any of the
procedures described above under "--Procedures for Tendering Original Capital
Securities."
All questions as to the validity, form and eligibility (including time
of receipt) of such withdrawal notices will be determined by the Trust, in its
sole discretion, whose determination shall be final and binding on all parties.
Neither the Corporation, the Trust, any affiliates or assigns of the Corporation
or the Trust, the Exchange Agent nor any other person shall be under any duty to
give any notification of any irregularities in any notice of withdrawal or incur
any liability for failure to give any such notification. Any Original Capital
Securities which have been tendered but which are withdrawn will be returned to
the holder thereof promptly after withdrawal.
DISTRIBUTIONS ON EXCHANGE CAPITAL SECURITIES
Holders of Original Capital Securities whose Original Capital
Securities are accepted for exchange will not receive Distributions on such
Original Capital Securities and will be deemed to have waived the right to
receive any Distributions on such Original Capital Securities accumulated from
and after December 31, 1996. Accordingly, holders of Exchange Capital Securities
as of the record date for the payment of Distributions on June 15, 1997 will be
entitled to receive Distributions accumulated from and after December 31, 1996.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer, or any
extension of the Exchange Offer, the Corporation and the Trust will not be
required to accept for exchange, or to exchange, any Original Capital Securities
for any Exchange Capital Securities, and, as described below, may terminate the
Exchange Offer (whether or not any Original Capital Securities have theretofore
been accepted for exchange) or may waive any conditions to or amend the Exchange
Offer, if any of the following conditions have occurred or exists or have not
been satisfied:
(a) there shall occur a change in the current interpretation by the
staff of the Commission which permits the Exchange Capital Securities issued
pursuant to the Exchange Offer in exchange for Original Capital Securities to be
offered for resale, resold and otherwise transferred by holders thereof (other
than broker-dealers and any such holder which is an "affiliate" of the
Corporation or the Trust within the meaning of Rule 405 under the Securities
Act) without compliance with the registration and prospectus delivery provisions
of the Securities Act, provided that such Exchange Capital Securities are
acquired in the ordinary course of such holders' business and such holders have
no arrangement or understanding with any person to participate in the
distribution of such Exchange Capital Securities; or
(b) any law, statute, rule or regulation shall have been adopted or
enacted which, in the judgment of the Corporation or the Trust, would reasonably
be expected to impair its ability to proceed with the Exchange Offer; or
(c) a stop order shall have been issued by the Commission or any state
securities authority suspending the effectiveness of the Registration Statement,
or proceedings shall have been initiated or, to the knowledge of the Corporation
or the Trust, threatened for that purpose, or any governmental approval has not
been obtained, which
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approval the Corporation or the Trust shall, in its sole discretion, deem
necessary for the consummation of the Exchange Offer as contemplated hereby.
(d) the Corporation determines in good faith (i) that there is a
reasonable likelihood that, or a material uncertainty exists as to whether,
consummation of the Exchange Offer would result in an adverse tax consequence
to the Trust or the Corporation and (ii) that such condition exists on the
240th day following the Closing Date.
If the Corporation or the Trust determines in its sole and absolute
discretion that any of the foregoing events or conditions has occurred or exists
or has not been satisfied, it may, subject to applicable law, terminate the
Exchange Offer (whether or not any Original Capital Securities have theretofore
been accepted for exchange) or may waive any such condition or otherwise amend
the terms of the Exchange Offer in any respect. If such waiver or amendment
constitutes a material change to the Exchange Offer, the Corporation or the
Trust will promptly disclose such waiver or amendment by means of a prospectus
supplement that will be distributed to the registered holders of the Original
Capital Securities and will extend the Exchange Offer to the extent required by
Rule 14e-1 under the Exchange Act.
EXCHANGE AGENT
Bankers Trust Company has been appointed as Exchange Agent for the
Exchange Offer. Delivery of the Letters of Transmittal and any other required
documents, questions, requests for assistance, and requests for additional
copies of this Prospectus or of the Letter of Transmittal should be directed to
the Exchange Agent as follows:
BY HAND, OVERNIGHT DELIVERY, REGISTERED OR CERTIFIED MAIL:
Bankers Trust Company
Four Albany Street, 4th Floor
New York, New York 10006
Attention: Jenna Kaufman
Confirm By Telephone:
(212) 250-6161
Facsimile Transmissions:
(ELIGIBLE INSTITUTIONS ONLY)
(212) 250-6961
Delivery to other than the above addresses or facsimile number will not
constitute a valid delivery.
FEES AND EXPENSES
The Corporation has agreed to pay the Exchange Agent reasonable and
customary fees for its services and will reimburse it for its reasonable
out-of-pocket expenses in connection therewith. The Corporation will also pay
brokerage houses and other custodians, nominees and fiduciaries the reasonable
out-of-pocket expenses incurred by them in forwarding copies of this Prospectus
and related documents to the beneficial owners of Original Capital Securities,
and in handling or tendering for their customers.
Holders who tender their Original Capital Securities for exchange will
not be obligated to pay any transfer taxes in connection therewith. If, however,
Exchange Capital Securities are to be delivered to, or are to be issued in the
name of, any person other than the registered holder of the Original Capital
Securities tendered, or if a transfer tax is imposed for any reason other than
the exchange of Original Capital Securities in connection with the Exchange
Offer, then the amount of any such transfer taxes (whether imposed on the
registered holder or any other persons) will be payable by the tendering holder.
If satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the Letter of Transmittal, the amount of such transfer taxes will
be billed directly to such tendering holder.
Neither the Corporation nor the Trust will make any payment to brokers,
dealers or other nominees soliciting acceptances of the Exchange Offer.
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DESCRIPTION OF EXCHANGE SECURITIES
DESCRIPTION OF EXCHANGE CAPITAL SECURITIES
Pursuant to the terms of the Declaration, the Issuer Trustees on behalf
of the Trust will issue the Exchange Capital Securities. The Exchange Capital
Securities will represent beneficial ownership interests in the Trust and the
holders thereof will be entitled to a preference in certain circumstances with
respect to Distributions and amounts payable on redemption of the Trust
Securities or liquidation of the Trust over the Common Securities, as well as
other benefits as described in the Declaration. See "--Subordination of Common
Securities." The Declaration has been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). This summary of certain provisions
of the Exchange Capital Securities, the Common Securities and the Declaration
does not purport to be complete and is subject to, and is qualified in its
entirety by reference to, all the provisions of the Declaration, including the
definitions therein of certain terms. The form of the Declaration is available
upon request from the Issuer Trustees.
GENERAL. The Exchange Capital Securities will be limited to $100 million
aggregate Liquidation Amount at any one time outstanding. The Capital Securities
will rank pari passu, and payments will be made thereon pro rata, with the
Common Securities except as described under "--Subordination of Common
Securities." Legal title to the Junior Subordinated Debt Securities will be held
by the Property Trustee on behalf of the Trust in trust for the benefit of the
holders of the Trust Securities. The Exchange Guarantee executed by the
Corporation for the benefit of the holders of the Exchange Capital Securities
(the "Exchange Guarantee") will be on a subordinated basis with respect to the
Exchange Capital Securities but will not guarantee payment of Distributions or
amounts payable on redemption of the Exchange Capital Securities or on
liquidation of the Trust when the Trust does not have funds on hand available to
make such payments. See "--Description of Exchange Guarantee."
DISTRIBUTIONS. The Exchange Capital Securities represent beneficial ownership
interests in the Trust, and Distributions on each Capital Security will be
payable at the annual rate of 8.70% of the stated Liquidation Amount of $1,000,
and will be payable semi-annually in arrears on June 15 and December 15 of each
year to the holders of the Exchange Capital Securities at the close of business
on the June 1 or December 1 (each, a "Record Date"), as the case may be, next
preceding the relevant Distribution Date (as defined herein). Distributions on
the Exchange Capital Securities will be cumulative. Distributions will
accumulate from the date of original issuance. The first Distribution Date for
the Exchange Capital Securities will be June 15, 1997. The amount of
Distributions payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months. In the event that any date on which Distributions
are payable on the Exchange Capital Securities is not a Business Day (as defined
herein), payment of the Distributions payable on such date will be made on the
next succeeding day that is a Business Day (and without any additional
Distributions or other payments in respect to any such delay) with the same
force and effect as if made on the date such payment was originally payable
(each date on which Distributions are payable in accordance with the foregoing,
a "Distribution Date"). A "Business Day" shall mean any day other than a
Saturday or a Sunday, or a day on which banking institutions in The City of New
York are authorized or required by law or executive order to remain closed, or a
day on which the corporate trust office of the Property Trustee or the Debenture
Trustee is closed for business.
So long as no Debenture Event of Default has occurred and is
continuing, the Corporation has the right under the Indenture to defer the
payment of interest on the Exchange Junior Subordinated Debt Securities at any
time or from time to time for a period not exceeding 10 consecutive semi-annual
periods with respect to each Extension Period, provided that no Extension Period
may extend beyond the Stated Maturity of the Junior Subordinated Debt
Securities. As a consequence of any such election, semi-annual Distributions on
the Trust Securities by the Trust will be deferred during any such Extension
Period. Distributions to which holders of the Trust Securities are entitled will
accumulate additional Distributions thereon at the rate per annum of 8.70%
thereof, compounded semi-annually from the relevant payment date for such
Distributions. The term "Distributions" as used herein shall include any such
additional Distributions. During any such Extension Period, the Corporation may
not (i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Corporation's
capital stock (which includes common and preferred stock), (ii) make any payment
of principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities of, the Corporation (including Other Debentures) that rank pari
passu with or junior in interest to the Junior Subordinated Debt Securities, or
(iii) make any guarantee payments with respect to any guarantee by the
Corporation of the debt securities of any subsidiary of the Corporation
(including Other Guarantees) if such guarantee ranks pari passu with or junior
in interest to the Junior Subordinated Debt Securities (other than (a) dividends
or distributions in common stock of the Corporation, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the
Guarantee, (d) purchases or acquisitions of shares of the Corporation's common
stock in connection with the satisfaction by the Corporation of its obligations
under any employee benefit plan or any other contractual obligation of the
Corporation (other than a contractual obligation ranking pari passu with or
junior to the Junior Subordinated Debt Securities), (e) as a result of a
reclassification of the Corporation's capital stock or the exchange or
conversion of one class or series of the Corporation's capital stock for another
class or series of the Corporation's capital stock or, (f) the purchase of
fractional interests in
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shares of the Corporation's stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged).
Prior to the termination of any such Extension Period, the Corporation may
further extend such Extension Period, provided that such extension does not
cause such Extension Period to exceed 10 consecutive semi-annual periods or to
extend beyond the Stated Maturity of the Junior Subordinated Debt Securities.
Upon the termination of any such Extension Period and the payment of all amounts
then due, and subject to the foregoing limitations, the Corporation may elect to
begin a new Extension Period. The Corporation must give the Property Trustee,
the Administrative Trustees and the Debenture Trustee notice of its election of
any such Extension Period at least five Business Days prior to the earlier of
(i) the date the Distributions on the Capital Securities would have been payable
except for the election to begin such Extension Period or (ii) the date the
Administrative Trustees are required to give notice to any automated quotation
system or to holders of such Exchange Capital Securities of the Record Date or
the date such Distributions are payable, but in any event not less than five
Business Days prior to such Record Date. There is no limitation on the number of
times that the Corporation may elect to begin an Extension Period. See
"--Description of Exchange Junior Subordinated Debt Securities--Option to Extend
Interest Payment Date" and "Certain United States Federal Income Tax
Consequences--Interest Income and Original Issue Discount."
The Corporation has no current intention of exercising its right to
defer payments of interest on the Exchange Junior Subordinated Debt Securities.
The revenue of the Trust available for distribution to holders of the
Trust Securities will be limited to payments under the Exchange Junior
Subordinated Debt Securities in which the Trust will invest the proceeds from
the issuance and sale of the Trust Securities. See "--Description of Exchange
Junior Subordinated Debt Securities--General." If the Corporation does not make
interest payments on the Exchange Junior Subordinated Debt Securities, the
Property Trustee will not have funds available to pay Distributions on the Trust
Securities. The payment of Distributions (if and to the extent the Trust has
funds legally available for the payment of such Distributions and cash
sufficient to make such payments) is guaranteed by the Corporation on a limited
basis as set forth herein under "--Description of Exchange Guarantee."
MANDATORY REDEMPTION. Upon the repayment in full at the Stated Maturity or a
redemption at any time in whole or in part of the Junior Subordinated Debt
Securities (other than following the distribution of the Junior Subordinated
Debt Securities to the holders of the Trust Securities), the proceeds from such
repayment or redemption shall be applied by the Property Trustee to redeem a
Like Amount of Trust Securities, upon not less than 30 nor more than 60 days'
notice of a date of redemption (the "Redemption Date"), at the applicable
Redemption Price, which shall be equal to (i) in the case of the repayment of
the Exchange Junior Subordinated Debt Securities at the Stated Maturity, the
Maturity Redemption Price (equal to the principal of, and accrued but unpaid
interest on, the Junior Subordinated Debt Securities), (ii) in the case of the
redemption of the Junior Subordinated Debt Securities prior to December 15, 2006
in connection with the occurrence of a Special Event, the Special Event
Redemption Price (equal to the Special Event Prepayment Price (as defined under
"--Description of the Exchange Junior Subordinated Debt Securities--Special
Event Prepayment") or (iii) in the case of the optional redemption of the Junior
Subordinated Debt Securities on or after December 15, 2006, the Optional
Redemption Price (equal to the Optional Prepayment Price (as defined under
"--Description of Exchange Junior Subordinated Debt Securities--Optional
Redemption"). If less than all of the Junior Subordinated Debt Securities are to
be repaid or redeemed on a Redemption Date, then the proceeds from such
repayment or redemption shall be allocated to the redemption pro rata of the
Trust Securities.
Redemption of the Junior Subordinated Debt Securities prior to Stated
Maturity may be subject to receipt of prior approval by the Federal Reserve if
then required under applicable capital guidelines or policies of the Federal
Reserve.
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event, the Corporation will pay as
additional amounts on the Junior Subordinated Debt Securities the Additional
Sums.
"Additional Sums" means the additional amounts as may be necessary in
order that the amount of Distributions then due and payable by the Trust on the
outstanding Trust Securities shall not be reduced as a result of any additional
taxes, duties and other governmental charges to which the Trust has become
subject as a result of a Tax Event.
REDEMPTION PROCEDURES. Trust Securities shall be redeemed, if at all, at the
applicable Redemption Price with the proceeds from the contemporaneous repayment
or redemption of the Exchange Junior Subordinated Debt Securities. Redemptions
of the Trust Securities shall be made and the applicable Redemption Price shall
be payable on each Redemption Date only to the extent that the Trust has funds
on hand available for the payment of such applicable Redemption Price. See also
"--Subordination of Common Securities."
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If the Trust gives a notice of redemption in respect of the Exchange
Capital Securities, then, by 12:00 noon, New York City time, on the Redemption
Date, to the extent funds are available, with respect to the Exchange Capital
Securities held in global form, the Property Trustee will deposit irrevocably
with DTC funds sufficient to pay the applicable Redemption Price and will give
DTC irrevocable instructions and authority to pay the applicable Redemption
Price to the holders of the Capital Securities. See "--Form, Denomination,
Book-Entry Procedures and Transfer." With respect to the Exchange Capital
Securities held in certificated form, the Property Trustee, to the extent funds
are available, will irrevocably deposit with the paying agent for the Exchange
Capital Securities funds sufficient to pay the applicable Redemption Price and
will give such paying agent irrevocable instructions and authority to pay the
applicable Redemption Price to the holders thereof upon surrender of their
certificates evidencing the Exchange Capital Securities. See "--Payment and
Paying Agency." Notwithstanding the foregoing, Distributions payable on or prior
to the Redemption Date shall be payable to the holders of the Exchange Capital
Securities on the relevant Record Dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of the holders of the Exchange Capital
Securities will cease, except the right of the holders of the Exchange Capital
Securities to receive the applicable Redemption Price, but without interest on
such Redemption Price, and the Exchange Capital Securities will cease to be
outstanding. In the event that any date fixed for redemption of Capital
Securities is not a Business Day, then payment of the applicable Redemption
Price payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day. In the event
that payment of the applicable Redemption Price is improperly withheld or
refused and not paid either by the Trust or by the Corporation pursuant to the
Exchange Guarantee as described under "--Description of Exchange Guarantee,"
Distributions on Exchange Capital Securities will continue to accrue at the then
applicable rate, from the Redemption Date originally established by the Trust to
the date such applicable Redemption Price is actually paid, in which case the
actual payment date will be the date fixed for redemption for purposes of
calculating the applicable Redemption Price.
Subject to applicable law (including, without limitation, United States
federal securities law), the Corporation or its subsidiaries may at any time and
from time to time purchase outstanding Capital Securities by tender, in the open
market or by private agreement.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each holder of Trust Securities at
its registered address. Unless the Corporation defaults in payment of the
applicable Prepayment Price on, or in the repayment of, the Junior Subordinated
Debt Securities, on and after the Redemption Date, Distributions will cease to
accrue on the Trust Securities called for redemption.
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBT
SECURITIES. The Corporation will have the right at any time to terminate the
Trust and cause a Like Amount of the Junior Subordinated Debt Securities to be
distributed to the holders of the Trust Securities in liquidation of the Trust;
provided, however, that following such distribution of the Junior Subordinated
Debt Securities, the Corporation agrees to use its best efforts to maintain any
ratings of such Junior Subordinated Debt Securities by any nationally recognized
rating agency for so long as any such Junior Subordinated Debt Securities are
outstanding. Such right is subject to prior approval of the Federal Reserve if
then required under applicable capital guidelines or policies of the Federal
Reserve.
Upon liquidation of the Trust and certain other events, the Junior
Subordinated Debt Securities may be distributed to holders of the Trust
Securities. Under current United States federal income tax law, a distribution
of Junior Subordinated Debt Securities upon the dissolution of the Trust would
not be a taxable event to holders of the Capital Securities. If, however, the
Trust is characterized for United States federal income tax purposes as an
association taxable as a corporation at the time of dissolution of the Trust,
the distribution of the Junior Subordinated Debt Securities may constitute a
taxable event to holders of Capital Securities. Moreover, upon the occurrence of
a Tax Event, a dissolution of the Trust in which holders of the Capital
Securities receive cash would be a taxable event to such holders. See "Certain
United States Federal Income Tax Consequences--Distribution of Junior
Subordinated Debt Securities or Cash Upon Liquidation of the Trust."
The Trust shall automatically terminate upon the first to occur of: (i)
certain events of bankruptcy, dissolution or liquidation of the Corporation;
(ii) the distribution of a Like Amount of the Junior Subordinated Debt
Securities to the holders of the Trust Securities if the Corporation, as
Depositor, has given written direction to the Property Trustee to terminate the
Trust (which direction is optional and, except as described above, wholly within
the discretion of the Corporation, as Depositor); (iii) redemption of all of the
Trust Securities as described under "--Mandatory Redemption" above; (iv)
expiration of the term of the Trust; and (v) the entry of an order for the
dissolution of the Trust by a court of competent jurisdiction.
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If an early termination occurs as described in clause (i), (ii), (iv)
or (v) above, the Trust shall be liquidated by the Issuer Trustees as
expeditiously as the Issuer Trustees determine to be possible by distributing,
after satisfaction of liabilities to creditors of the Trust as provided by
applicable law, to the holders of such Trust Securities a Like Amount of the
Junior Subordinated Debt Securities, unless such distribution would not be
practical, in which event such holders will be entitled to receive out of the
assets of the Trust available for distribution to holders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an amount
equal to, in the case of holders of Capital Securities, the aggregate of the
Liquidation Amount plus accumulated and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"). If such
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then the amounts payable directly by the Trust on the Capital
Securities shall be paid on a pro rata basis. The holder(s) of the Common
Securities will be entitled to receive distributions upon any such liquidation
pro rata with the holders of the Capital Securities, except that if a Debenture
Event of Default has occurred and is continuing, the Capital Securities shall
have a priority over the Common Securities. See "--Subordination of Common
Securities." If an early termination occurs as described in clause (v) above,
the Junior Subordinated Debt Securities will be subject to optional redemption
in whole (but not in part).
"Like Amount" means (i) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Junior Subordinated Debt Securities to be
contemporaneously redeemed in accordance with the Indenture, allocated to the
Trust Securities based upon the relative Liquidation Amounts of such classes and
the proceeds of which will be used to pay the Redemption Price of the Trust
Securities and (ii) with respect to a distribution of Junior Subordinated Debt
Securities to holders of Trust Securities in connection with a dissolution or
liquidation of the Trust, Junior Subordinated Debt Securities having a principal
amount equal to the Liquidation Amount of the Trust Securities of the holder to
whom such Junior Subordinated Debt Securities are distributed.
If the Corporation elects not to redeem the Junior Subordinated Debt
Securities prior to maturity and the Trust is not liquidated and the Junior
Subordinated Debt Securities are not distributed to holders of the Trust
Securities, the Capital Securities will remain outstanding until the repayment
of the Junior Subordinated Debt Securities at the Stated Maturity.
After the liquidation date is fixed for any distribution of Junior
Subordinated Debt Securities to holders of the Trust Securities (i) the Capital
Securities will no longer be deemed to be outstanding, (ii) DTC or its nominee,
as the record holder of the Capital Securities, will receive a registered global
certificate or certificates representing the Junior Subordinated Debt Securities
to be delivered upon such distribution with respect to Capital Securities held
by DTC or its nominee and (iii) any certificates representing Capital Securities
not held by DTC or its nominee will be deemed to represent Junior Subordinated
Debt Securities having a principal amount equal to the Liquidation Amount of
such Capital Securities and bearing accrued and unpaid interest in an amount
equal to the accumulated and unpaid Distributions on such Capital Securities
until such certificates are presented to the Administrative Trustees or their
agent for cancellation, whereupon the Corporation will issue to such holder, and
the Debenture Trustee will authenticate, a certificate representing such Junior
Subordinated Debt Securities.
There can be no assurance as to the market prices for the Capital
Securities or the Junior Subordinated Debt Securities that may be distributed in
exchange for the Trust Securities if a dissolution and liquidation of the Trust
were to occur. Accordingly, the Capital Securities that an investor may
purchase, or the Junior Subordinated Debt Securities that the investor may
receive on dissolution and liquidation of the Trust, may trade at a discount to
the price that the investor paid to purchase the Capital Securities offered
hereby.
SUBORDINATION OF COMMON SECURITIES. Payment of Distributions on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made pro rata
to the holders of Trust Securities based on the Liquidation Amount of the Trust
Securities; provided, however, that if on any Distribution Date or Redemption
Date any Event of Default resulting from a Debenture Event of Default or an
Event of Default under the Declaration shall have occurred and be continuing, no
payment of any Distribution on, or applicable Redemption Price of, any of the
Common Securities, and no other payment on account of the redemption,
liquidation or other acquisition of such Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid Distributions on all of
the outstanding Capital Securities for all Distribution periods terminating on
or prior thereto, or, in the case of payment of the applicable Redemption Price,
the full amount of such Redemption Price on, all of the outstanding Capital
Securities, shall have been made or provided for, and all funds available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions on, or the Redemption Price of, the Capital Securities then due
and payable.
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In the case of any Event of Default under the Declaration resulting
from a Debenture Event of Default, the Corporation as holder of the Common
Securities will be deemed to have waived any right to act with respect to any
such Event of Default until the effect of all such Events of Default have been
cured, waived or otherwise eliminated. Until all such Events of Default have
been so cured, waived or otherwise eliminated, the Property Trustee shall act
solely on behalf of the holders of such Capital Securities and not on behalf of
the Corporation as holder of the Common Securities, and only the holders of the
Capital Securities will have the right to direct the Property Trustee to act on
their behalf.
EVENTS OF DEFAULT; NOTICE. Any one of the following events constitutes an "Event
of Default" under the Declaration (an "Event of Default") (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(i) the occurrence of a Debenture Event of Default (see
"--Description of Exchange Junior Subordinated Debt
Securities--Debenture Events of Default"); or
(ii) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of
such default for a period of 30 days; or
(iii) default by the Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and
payable; or
(iv) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Issuer
Trustees in the Declaration (other than a covenant or
warranty, a default in the performance of which or the
breach of which is addressed in clause (ii) or (iii)
above), and continuation of such default or breach for
a period of 60 days after there has been given, by
registered or certified mail, to the defaulting Issuer
Trustee or Issuer Trustees by the holders of at least
25% in aggregate Liquidation Amount of the outstanding
Capital Securities, a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" under
the Declaration; or
(v) the occurrence of certain events of bankruptcy or
insolvency with respect to the Property Trustee and the
failure by the Corporation to appoint a successor
Property Trustee within 60 days thereof.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Event of Default to the holders of the Capital Securities, the
Administrative Trustees and the Corporation, as Depositor, unless such Event of
Default shall have been cured or waived. The Corporation, as Depositor, and the
Administrative Trustees are required to file annually with the Property Trustee
a certificate as to whether or not they are in compliance with all the
conditions and covenants applicable to them under the Declaration.
If a Debenture Event of Default or an Event of Default under the
Declaration has occurred and is continuing, the Capital Securities shall have a
preference over the Common Securities as described above. See "--Liquidation of
the Trust and Distribution of Junior Subordinated Debt Securities" and
"--Subordination of Common Securities."
REMOVAL OF ISSUER TRUSTEES. Unless a Debenture Event of Default shall have
occurred and be continuing, any Issuer Trustee may be removed at any time by the
holder of the Common Securities. If a Debenture Event of Default has occurred
and is continuing, the Property Trustee and the Delaware Trustee may be removed
at such time by the holders of a majority in Liquidation Amount of the
outstanding Capital Securities. In no event will the holders of the Capital
Securities have the right to vote to appoint, remove or replace the
Administrative Trustees, which voting rights are vested exclusively in the
Corporation as the holder of the Common Securities. No resignation or removal of
an Issuer Trustee and no appointment of a successor trustee shall be effective
until the acceptance of appointment by the successor trustee in accordance with
the provisions of the Declaration.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE. Unless an Event of Default shall have
occurred and be continuing, at any time or times, for the purpose of meeting the
legal requirements of the Trust Indenture Act or of any jurisdiction in which
any part of the Trust's property may at the time be located, the Corporation, as
the holder of the Common Securities, and the Administrative Trustees shall have
power to appoint one or more persons either to act as a co-trustee, jointly with
the Property Trustee, of all or any part of such Trust's property, or to act as
separate trustee of any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such person or persons
in such
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capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of the Declaration. In case a Debenture Event of
Default has occurred and is continuing, the Property Trustee alone shall have
power to make such appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES. Any Person into which the Property
Trustee, the Delaware Trustee or any Administrative Trustee that is not a
natural person may be merged or converted or with which it may be consolidated
or any Person resulting from any merger, conversion or consolidation to which
such Issuer Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of such Issuer Trustee, shall be
the successor of such Issuer Trustee under the Declaration, provided such Person
shall be otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST. The Trust
may not merge with or into, consolidate, amalgamate or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety
to any corporation or other Person, except as described below or as otherwise
set forth in the Declaration. The Trust may, at the request of the Corporation,
as Depositor, with the consent of the Administrative Trustees but without the
consent of the holders of the Capital Securities, the Property Trustee or the
Delaware Trustee, merge with or into, consolidate, amalgamate or be replaced by,
or convey, transfer or lease its properties and assets substantially as an
entirety to, a trust organized as such under the laws of any State; provided,
however, that (i) such successor entity either (a) expressly assumes all of the
obligations of the Trust with respect to the Capital Securities or (b)
substitutes for the Capital Securities other securities having substantially the
same terms as the Capital Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Capital Securities rank in priority
with respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) the Corporation expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Junior Subordinated Debt Securities, (iii) the Successor
Securities are listed or traded, or any Successor Securities will be listed or
traded upon notification of issuance, on any national securities exchange or
other organization on which the Capital Securities are then listed or traded, if
any, (iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Capital Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the holders of the Capital Securities (including any Successor
Securities) in any material respect, (vi) such successor entity has a purpose
identical to that of the Trust, (vii) prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Corporation has
received an opinion from independent counsel to the Trust experienced in such
matters to the effect that (a) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Capital Securities (including
any Successor Securities) in any material respect, and (b) following such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease,
neither the Trust nor such successor entity will be required to register as an
investment company under the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and (viii) the Corporation or any permitted successor
or assignee owns all of the common securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding the
foregoing, the Trust shall not, except with the consent of holders of 100% in
Liquidation Amount of the Trust Securities, consolidate, amalgamate, merge with
or into, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to any other entity or permit any other
entity to consolidate, amalgamate, merge with or into, or replace it, if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease
would cause the Trust or the successor entity to be classified as other than a
grantor trust for United States federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF THE DECLARATION. Except as provided below and under
"--Description of Exchange Guarantee--Amendments and Assignment" and as
otherwise required by law and the Declaration, the holders of the Capital
Securities will have no voting rights.
The Declaration may be amended from time to time by the Corporation,
the Property Trustee and the Administrative Trustees, without the consent of the
holders of the Trust Securities, (i) to cure any ambiguity, correct or
supplement any provision in the Declaration that may be inconsistent with any
other provision, or to make any other provisions with respect to matters or
questions arising under the Declaration, which shall not be inconsistent with
the other provisions of the Declaration, or (ii) to modify, eliminate or add to
any provisions of the Declaration to such extent as shall be necessary to ensure
that the Trust will be classified for United States federal income tax purposes
as a grantor trust at all times that any Trust Securities are outstanding or to
ensure that the Trust will not be required to register as an "investment
company" under the Investment Company Act; provided, however, that in the case
of clause (i), such action shall not adversely affect in any material respect
the interests of any holder of Trust Securities, and any amendments of the
Declaration shall become effective when notice thereof is given to the holders
of the Trust Securities. The Declaration may be amended by the Issuer Trustees
and the Corporation with (i) the consent of holders representing
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not less than a majority (based upon Liquidation Amounts) of the outstanding
Trust Securities, and (ii) receipt by the Issuer Trustees of an opinion of
counsel to the effect that such amendment or the exercise of any power granted
to the Issuer Trustees in accordance with such amendment will not affect the
Trust's status as a grantor trust for United States federal income tax purposes
or the Trust's exemption from status as an "investment company" under the
Investment Company Act. In addition, without the consent of each holder of Trust
Securities, the Declaration may not be amended to (i) change the amount or
timing of any Distribution on the Trust Securities or otherwise adversely affect
the amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of a holder of
Trust Securities to institute suit for the enforcement of any such payment on or
after such date. The Exchange Capital Securities and any Original Capital
Securities which remain outstanding after consummation of the Exchange Offer
will vote together as a single class for purposes of determining whether holders
of the requisite percentage in outstanding Liquidation Amount thereof have taken
certain actions or exercised certain rights under the Declaration.
So long as any Junior Subordinated Debt Securities are held by the
Trust, the Issuer Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Property Trustee with respect to
the Junior Subordinated Debt Securities, (ii) waive any past default that is
waivable under Section 5.13 of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior Subordinated
Debt Securities shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture or the Junior Subordinated Debt
Securities, where such consent shall be required, without, in each case,
obtaining the prior approval of the holders of a majority in aggregate
Liquidation Amount of all outstanding Capital Securities; provided, however,
that where a consent under the Indenture would require the consent of each
holder of Junior Subordinated Debt Securities affected thereby, no such consent
shall be given by the Property Trustee without the prior consent of each holder
of the Capital Securities. The Issuer Trustees shall not revoke any action
previously authorized or approved by a vote of the holders of the Capital
Securities except by subsequent vote of such holders. The Property Trustee shall
notify each holder of Capital Securities of any notice of default with respect
to the Junior Subordinated Debt Securities. In addition to obtaining the
foregoing approvals of such holders of the Capital Securities, prior to taking
any of the foregoing actions, the Issuer Trustees shall obtain an opinion of
counsel experienced in such matters to the effect that the Trust will not be
classified as an association or as a publicly traded partnership taxable as a
corporation for United States federal income tax purposes on account of such
action.
Any required approval of holders of Exchange Capital Securities may be
given at a meeting of such holders convened for such purpose or pursuant to
written consent. The Property Trustee will cause a notice of any meeting at
which holders of Exchange Capital Securities are entitled to vote, or of any
matter upon which action by written consent of such holders is to be taken, to
be given to each holder of record of Exchange Capital Securities in the manner
set forth in the Declaration.
No vote or consent of the holders of Capital Securities will be
required for the Trust to redeem and cancel the Capital Securities in accordance
with the Declaration.
Notwithstanding that holders of the Capital Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Capital Securities that are owned by the Corporation, the Issuer Trustees or any
affiliate of the Corporation or any Issuer Trustees, shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
EXPENSES AND TAXES. In the Indenture, the Corporation, as issuer of the Junior
Subordinated Debt Securities, has agreed to pay all debts and other obligations
(other than with respect to payments of Distributions, amounts payable upon
redemption and the Liquidation Amount of the Trust Securities) and all costs and
expenses of the Trust (including costs and expenses relating to the organization
of the Trust, the fees and expenses of the Issuer Trustees and the costs and
expenses relating to the operation of the Trust) and the offering of the Capital
Securities, and to pay any and all taxes and all costs and expenses with respect
to the foregoing (other than United States withholding taxes) to which the Trust
might become subject. The foregoing obligations of the Corporation under the
Indenture are for the benefit of, and shall be enforceable by, any person to
whom any such debts, obligations, costs, expenses and taxes are owed (a
"Creditor") whether or not such Creditor has received notice thereof. Any such
Creditor may enforce such obligations of the Corporation directly against the
Corporation, and the Corporation has irrevocably waived any right or remedy to
require that any such Creditor take any action against the Trust or any other
person before proceeding against the Corporation. The Corporation has also
agreed in the Indenture to execute such additional agreement(s) as may be
necessary or desirable to give full effect to the foregoing.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER. The Exchange Capital
Securities initially will be represented by one or more Capital Securities in
registered, global form (collectively, the "Global Capital Securities").
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The Global Capital Securities will be deposited upon issuance with the Property
Trustee as custodian for DTC, in New York, New York, and registered in the name
of DTC or its nominee, in each case for credit to an account of a direct or
indirect participant in DTC as described below.
Except as set forth below, the Global Capital Securities may be
transferred, in whole and not in part, only to another nominee of DTC or to a
successor of DTC or its nominee. Beneficial interests in the Global Capital
Securities may not be exchanged for Capital Securities in certificated form
except in the limited circumstances described below. See "--Exchange of
Book-Entry Capital Securities for Certificated Capital Securities."
Depositary Procedures. DTC has advised the Trust and the Corporation as follows:
DTC is a limited purpose trust company organized under the laws of the State of
New York, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
was created to hold securities for its participating organizations
(collectively, the "Participants") and to facilitate the clearance and
settlement of transactions in those securities between Participants through
electronic book-entry changes to accounts of its Participants, thereby
eliminating the need for physical movement of certificates. Participants include
securities brokers and dealers (including the Initial Purchasers), banks, trust
companies, clearing corporations and certain other organizations. Indirect
access to DTC's system is also available to other entities such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly (collectively,
the "Indirect Participants"). Persons who are not Participants may beneficially
own securities held by or on behalf of DTC only through the Participants or the
Indirect Participants. The ownership interest and transfer of ownership interest
of each actual purchaser of each security held by or on behalf of DTC are
recorded on the records of the Participants and Indirect Participants.
DTC has also advised the Trust and the Corporation that, pursuant to
procedures established by it, (i) upon deposit of the Global Capital Securities,
DTC will credit the accounts of Participants designated by the Initial
Purchasers with portions of the principal amount of the Global Capital
Securities and (ii) ownership of such interests in the Global Capital Securities
will be shown on, and the transfer of ownership thereof will be effected only
through, records maintained by DTC (with respect to the Participants) or by the
Participants and the Indirect Participants (with respect to other owners of
beneficial interests in the Global Capital Securities).
Investors in the Global Capital Securities may hold their interests
therein directly through DTC, if they are Participants in DTC, or indirectly
through organizations which are Participants in such system. All interests in a
Global Capital Security will be subject to the procedures and requirements of
DTC. The laws of some states require that certain persons take physical delivery
in certificated form. Consequently, the ability to transfer beneficial interests
in a Global Capital Security to such persons will be limited to that extent.
Because DTC can act only on behalf of Participants, which in turn act on behalf
of Indirect Participants and certain banks, the ability of a person having
beneficial interests in a Global Capital Security to pledge such interests to
persons or entities that do not participate in the DTC system, or otherwise take
actions in respect of such interests, may be affected by the lack of a physical
certificate evidencing such interests. For certain other restrictions on the
transferability of the Capital Securities, see "--Exchange of Book-Entry Capital
Securities for Certificated Capital Securities."
EXCEPT AS DESCRIBED BELOW, OWNERS OF BENEFICIAL INTERESTS IN THE GLOBAL
CAPITAL SECURITIES WILL NOT BE ENTITLED TO HAVE CAPITAL SECURITIES REGISTERED IN
THEIR NAMES, WILL NOT RECEIVE OR BE ENTITLED TO RECEIVE PHYSICAL DELIVERY OF
CAPITAL SECURITIES IN CERTIFICATED FORM AND WILL NOT BE CONSIDERED THE
REGISTERED OWNERS OR HOLDERS THEREOF UNDER THE DECLARATION FOR ANY PURPOSE.
Payments in respect of the Global Capital Security registered in the
name of DTC or its nominee will be payable by the Property Trustee to DTC or its
nominee as the registered holder under the Declaration by wire transfer in
immediately available funds on each interest payment date. Under the terms of
the Declaration, the Property Trustee will treat the persons in whose names the
Capital Securities, including the Global Capital Securities, are registered as
the owners thereof for the purpose of receiving such payments and for any and
all other purposes whatsoever. Consequently, neither the Property Trustee nor
any agent thereof has or will have any responsibility or liability for (i) any
aspect of DTC's records or any Participant's or Indirect Participant's records
relating to, or payments made on account of, beneficial ownership interests in
the Global Capital Securities, or for maintaining, supervising or reviewing any
of DTC's records or any Participant's or Indirect Participant's records relating
to the beneficial ownership interests in the Global Capital Securities, or (ii)
any other matter relating to the actions and practices of DTC or any of its
Participants or Indirect Participants.
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DTC has advised the Trust and the Corporation that its current
practice, upon receipt of any payment in respect of securities such as the
Capital Securities, is to credit the accounts of the relevant Participants with
the payment on the payment date, in amounts proportionate to their respective
holdings in Liquidation Amount of beneficial interests in the Global Capital
Security, as shown on the records of DTC, unless DTC has reason to believe it
will not receive payment on such payment date. Payments by the Participants and
the Indirect Participants to the beneficial owners of Capital Securities
represented by Global Capital Securities held through such Participants will be
governed by standing instructions and customary practices and will be the
responsibility of the Participants or the Indirect Participants and will not be
the responsibility of DTC, the Property Trustee or the Trust. Neither the Trust
nor the Property Trustee will be liable for any delay by DTC or any of its
Participants in identifying the beneficial owners of the Capital Securities, and
the Trust and the Property Trustee may conclusively rely on and will be
protected in relying on instructions from DTC or its nominee for all purposes.
Interests in the Global Capital Securities will trade in DTC's Same-Day
Funds Settlement System and secondary market trading activity in such interests
will therefore settle in immediately available funds, subject in all cases to
the rules and procedures of DTC and its Participants. Transfers between
Participants in DTC will be effected in accordance with DTC's procedures, and
will be settled in same-day funds.
DTC has advised the Trust and the Corporation that it will take any
action permitted to be taken by a holder of Exchange Capital Securities
(including, without limitation, the presentation of Capital Securities for
exchange as described below) only at the direction of one or more Participants
to whose account with DTC interests in the Global Capital Securities are
credited and only in respect of such portion of the aggregate Liquidation Amount
of the Capital Securities represented by the Global Capital Securities as to
which such Participant or Participants has or have given such direction.
However, if there is an Event of Default under the Declaration, DTC reserves the
right to exchange the Global Capital Securities for Exchange legended Capital
Securities in certificated form and to distribute such Exchange Capital
Securities to its Participants.
So long as DTC or its nominee is the registered owner of the Global
Capital Securities, DTC or such nominee, as the case may be, will be considered
the sole owner or holder of the Capital Securities represented by the Global
Capital Security for all purposes under the Declaration. The information in this
section concerning DTC and its book-entry system has been obtained from sources
that the Trust and the Corporation believe to be reliable, but neither the Trust
nor the Corporation takes responsibility for the accuracy thereof.
Although DTC has agreed to the foregoing procedures to facilitate
transfers of interest in the Global Capital Securities among Participants in
DTC, it is under no obligation to perform or to continue to perform such
procedures, and such procedures may be discontinued at any time. Neither the
Trust nor the Property Trustee will have any responsibility for the performance
by DTC or its Participants or Indirect Participants of their respective
obligations under the rules and procedures governing their operations.
Exchange of Book-Entry Capital Securities for Certificated Capital Securities. A
Global Capital Security is exchangeable for Exchange Capital Securities in
registered certificated form if (i) DTC (x) notifies the Trust that it is no
longer willing or able to properly discharge its responsibilities with respect
to the Capital Securities and the Corporation is unable to locate a qualified
successor, or (y) has ceased to be a "clearing agency" registered under the
Exchange Act; (ii) the Corporation at its option elects to terminate the
book-entry system through DTC; or (iii) there shall have occurred and be
continuing a Debenture Event of Default. In addition, beneficial interests in a
Global Capital Security may be exchanged by or on behalf of DTC for certificated
Exchange Capital Securities upon request by DTC, but only upon at least 20 days
prior written notice given to the Property Trustee in accordance with DTC's
customary procedures. In all cases, certificated Capital Securities delivered in
exchange for any Global Capital Security or beneficial interests therein will be
registered in the names, and issued in any approved denominations, requested by
or on behalf of DTC (in accordance with its customary procedures).
PAYMENT AND PAYING AGENCY. Payments in respect of the Exchange Capital
Securities held in global form shall be made to the Depositary, which shall
credit the relevant accounts at the Depositary on the applicable Distribution
Dates or in respect of the Capital Securities that are not held by the
Depositary, such payments shall be made by check mailed to the address of the
holder entitled thereto as such address shall appear on the register. The paying
agent (the "Paying Agent") shall initially be the Property Trustee and any
co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and the Corporation. The Paying Agent shall be permitted
to resign as Paying Agent upon 30 days' written notice to the Property Trustee,
the Administrative Trustees and the Corporation. In the event that the Property
Trustee shall no longer be the Paying Agent, the Administrative Trustees shall
appoint a successor (which shall be a bank or trust company acceptable to the
Administrative Trustees and the Corporation) to act as Paying Agent.
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Bankers Trust Company has informed the Trust that so long as it serves
as paying agent for the Capital Securities, it anticipates that information
regarding Distributions on the Capital Securities, including payment date,
Record Date and redemption information, will be made available through Bankers
Trust Company at 1-800-735-7777.
RESTRICTIONS ON TRANSFER. The Exchange Capital Securities will be issued, and
may be transferred only, in minimum denominations of not less than $1,000 and
multiples of $1,000 in excess thereof. Any transfer, sale or other disposition
of Exchange Capital Securities in a denomination of less than $1,000 shall be
deemed to be void and of no legal effect whatsoever. Any such transferee shall
be deemed not to be the holder of such Exchange Capital Securities for any
purpose, including but not limited to the receipt of payments on such Exchange
Capital Securities, and such transferee shall be deemed to have no interest
whatsoever in such Exchange Capital Securities.
REGISTRAR AND TRANSFER AGENT. The Property Trustee will act as registrar and
transfer agent for the Exchange Capital Securities. Registration of transfers of
the Exchange Capital Securities will be effected without charge by or on behalf
of the Trust, but upon payment of any tax or other governmental charges that may
be imposed in connection with any transfer or exchange. The Trust will not be
required to register or cause to be registered the transfer of the Exchange
Capital Securities after they have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE. The Property Trustee, other than
during the occurrence and continuance of an Event of Default, undertakes to
perform only such duties as are specifically set forth in the Declaration and,
during the existence of an Event of Default, must exercise the same degree of
care and skill as a prudent person would exercise or use in the conduct of his
or her own affairs. Subject to this provision, the Property Trustee is under no
obligation to exercise any of the powers vested in it by the Declaration at the
request of any holder of Trust Securities unless it is offered reasonable
indemnity against the costs, expenses and liabilities that might be incurred
thereby. If no Event of Default has occurred and is continuing and the Property
Trustee is required to decide between alternative causes of action, construe
ambiguous provisions in the Declaration or is unsure of the application of any
provision of the Declaration, and the matter is not one on which holders of the
Capital Securities or the Common Securities are entitled under the Declaration
to vote, then the Property Trustee shall take such action as is directed by the
Corporation and, if not so directed, shall take such action as it deems
advisable and in the best interests of the holders of the Trust Securities and
will have no liability except for its own bad faith, negligence or willful
misconduct.
MISCELLANEOUS. The Administrative Trustees are authorized and directed to
conduct the affairs of and to operate the Trust in such a way that the Trust
will not be deemed to be an "investment company" required to be registered under
the Investment Company Act or classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income tax
purposes, and so that the Junior Subordinated Debt Securities will be treated as
indebtedness of the Corporation for United States federal income tax purposes.
In this connection, the Corporation and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable law, the
certificate of trust of the Trust or the Declaration, that the Corporation and
the Administrative Trustees determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not materially
adversely affect the interests of the holders of the Trust Securities.
Holders of the Trust Securities have no preemptive or similar rights.
The Trust may not borrow money or issue debt or mortgage or pledge any
of its assets.
DESCRIPTION OF EXCHANGE JUNIOR SUBORDINATED DEBT SECURITIES
The Junior Subordinated Debt Securities were issued as a separate
series under a Junior Subordinated Indenture, as supplemented from time to time
(as so supplemented, the "Indenture"), between the Corporation and, Bankers
Trust Company, as trustee (the "Debenture Trustee"). The Indenture has been
qualified under the Trust Indenture Act. This summary of certain terms and
provisions of the Junior Subordinated Debt Securities and the Indenture does not
purport to be complete, and where reference is made to particular provisions of
the Indenture, such provisions, including the definitions of certain terms, some
of which are not otherwise defined herein, are qualified in their entirety by
reference to all of the provisions of the Indenture and those terms made a part
of the Indenture by the Trust Indenture Act.
GENERAL. Concurrently with the issuance of the Trust Securities, the Trust
invested the proceeds thereof in the Original Junior Subordinated Debt
Securities issued by the Corporation. The Exchange Junior Subordinated Debt
Securities, similarly to the Original Junior Subordinated Debt Securities, will
bear interest at the annual rate of 8.70% of the principal amount thereof,
payable semi-annually in arrears on June 15 and December 15 of each year (each,
an "Interest Payment
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<PAGE> 47
Date"), commencing June 15, 1997, to the person in whose name each Junior
Subordinated Debt Security is registered, subject to certain exceptions, at the
close of business on the Business Day next preceding such Interest Payment Date.
It is anticipated that, until the liquidation of the Trust, each Exchange Junior
Subordinated Debt Security will be held by the Trust for the benefit of the
holders of the Trust Securities. The amount of interest payable for any period
will be computed on the basis of a 360-day year of twelve 30-day months. In the
event that any date on which interest is payable on the Exchange Junior
Subordinated Debt Securities is not a Business Day, then payment of the interest
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay),
with the same force and effect as if made on the date such payment was
originally payable. Accrued interest that is not paid on the applicable Interest
Payment Date will bear additional interest on the amount thereof (to the extent
permitted by law) at the rate per annum of 8.70% thereof, compounded
semi-annually from the relevant Interest Payment Date. The term "interest" as
used herein shall include semi-annual interest payments, interest on semi-annual
interest payments not paid on the applicable Interest Payment Date and
Additional Sums (as defined herein), as applicable.
The Exchange Junior Subordinated Debt Securities will be issued
pursuant to the Indenture. Unless previously redeemed or repurchased, the Junior
Subordinated Debt Securities will mature on December 15, 2026.
The Exchange Junior Subordinated Debt Securities will be unsecured and
will rank junior and be subordinate in right of payment to all Senior Debt.
Because the Corporation is a bank holding company, the right of the Corporation
to participate in any distribution of assets of any subsidiary, including the
Bank, upon such subsidiary's liquidation or reorganization or otherwise (and
thus the ability of holders of the Capital Securities to benefit indirectly from
such distribution), is subject to the prior claims of creditors of such
subsidiary, except to the extent that the Corporation may itself be recognized
as a creditor of such subsidiary. Accordingly, the Exchange Junior Subordinated
Debt Securities will be subordinated to all Senior Debt and effectively
subordinated to all existing and future liabilities of the Corporation's
subsidiaries, and holders of Exchange Junior Subordinated Debt Securities should
look only to the assets of the Corporation for payments on the Exchange Junior
Subordinated Debt Securities. The Indenture does not limit the incurrence or
issuance of other secured or unsecured debt of the Corporation, including Senior
Debt, whether under the Indenture or any existing or other indenture that the
Corporation may enter into in the future or otherwise. See "--Subordination."
The Exchange Junior Subordinated Debt Securities will rank pari passu
with the Original Junior Subordinated Debt Securities and all Other Debentures
issued under the Indenture and will be unsecured and subordinate and junior in
right of payment to the extent and in the manner set forth in the Indenture to
all Senior Debt of the Corporation. See "--Subordination." The Corporation is a
non-operating holding company and almost all of the operating assets of the
Corporation and its consolidated subsidiaries are owned by such subsidiaries.
The Corporation relies primarily on dividends from such subsidiaries to meet its
obligations. The Corporation is a legal entity separate and distinct from its
present and future banking and non-banking affiliates. The Corporation's bank
subsidiaries are subject to certain restrictions imposed by federal law on any
extensions of credit to, and certain other transactions with, the Corporation
and certain other affiliates, and on investments in stock or other securities
thereof. Such restrictions prevent the Corporation and such other affiliates
from borrowing from such banks unless the loans are secured by various types of
collateral. In addition, payment of dividends to the Corporation by a bank
subsidiary is subject to ongoing review by banking regulators and is subject to
various statutory limitations and in certain circumstances requires approval by
banking regulatory authorities. The Other Debentures will be issuable in one or
more series pursuant to an indenture supplemental to the Indenture or a
resolution of the Corporation's Board of Directors or a committee thereof.
DENOMINATIONS, REGISTRATION AND TRANSFER. The Exchange Junior Subordinated Debt
Securities will be represented by one or more global certificates registered in
the name of Cede & Co. as the nominee of DTC if, and only if, distributed to the
holders of the Trust Securities. Until such time, the Exchange Junior
Subordinated Debt Securities will be registered in the name of the Trust and
held by the Property Trustee. Should the Exchange Junior Subordinated Debt
Securities be distributed to holders of the Trust Securities, beneficial
interests in the Exchange Junior Subordinated Debt Securities will be shown on,
and transfers thereof will be effected only through, records maintained by
Participants in DTC.
A global security shall be exchangeable for Exchange Junior
Subordinated Debt Securities registered in the names of persons other than Cede
& Co. only if (i) DTC notifies the Corporation that it is unwilling or unable to
continue as a depositary for such global security and no successor depositary
shall have been appointed, or if at any time DTC ceases to be a "clearing
agency" registered under the Exchange Act, at a time when DTC is required to be
so registered to act as such depositary, (ii) the Corporation in its sole
discretion determines that such global security shall be so exchangeable, or
(iii) there shall have occurred and be continuing a Debenture Event of Default.
Any global security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for certificates registered in such names as DTC shall
direct. It is expected that such instructions will be based upon directions
received by DTC from its Participants with
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respect to ownership of beneficial interests in such global security. In the
event that Exchange Junior Subordinated Debt Securities are issued in
certificated form, such Exchange Junior Subordinated Debt Securities will be in
minimum denominations of $1,000 and integral multiples of $1,000 in excess
thereof and may be transferred or exchanged only in such minimum denominations
and in the manner and at the offices described below.
Payments on Exchange Junior Subordinated Debt Securities represented by
a global security will be made to DTC, as the depositary for the Exchange Junior
Subordinated Debt Securities. In the event Exchange Junior Subordinated Debt
Securities are issued in certificated form, principal and interest will be
payable, the transfer of the Exchange Junior Subordinated Debt Securities will
be registrable, and Exchange Junior Subordinated Debt Securities will be
exchangeable for Exchange Junior Subordinated Debt Securities of other
denominations of a like aggregate principal amount, at the corporate office of
the Debenture Trustee in New York, New York, or at the offices of any paying
agent or transfer agent appointed by the Corporation, provided that payment of
interest may be made at the option of the Corporation by check mailed to the
address of the persons entitled thereto or by wire transfer. In addition, if the
Exchange Junior Subordinated Debt Securities are issued in certificated form,
the record dates for payment of interest will be the 1st day of the last month
of each semi-annual period.
For a description of DTC and the terms of the depositary arrangements
relating to payments, transfers, voting rights, redemptions and other notices
and other matters, see "Description of Exchange Securities--Description of
Exchange Capital Securities--Form, Denomination, Book-Entry Procedures and
Transfer." If the Exchange Junior Subordinated Debt Securities are distributed
to the holders of the Trust Securities upon the termination of the Trust, the
form, denomination, book-entry and transfer procedures with respect to the
Capital Securities as described under "Description of Exchange
Securities--Description of Exchange Capital Securities--Form, Denomination,
Book-Entry Procedures and Transfer," shall apply to the Exchange Junior
Subordinated Debt Securities mutatis mutandis.
PAYMENT AND PAYING AGENTS. Payment of principal of (and premium, if any) and any
interest on Exchange Junior Subordinated Debt Securities will be made at the
office of the Debenture Trustee in the City of New York or at the office of such
Paying Agent or Paying Agents as the Corporation may designate from time to
time, except that at the option of the Corporation payment of any interest may
be made (except in the case of Exchange Junior Subordinated Debt Securities in
global form), (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the register for Exchange Junior Subordinated
Debt Securities or (ii) by transfer to an account maintained by the person
entitled thereto as specified in such register, provided that proper transfer
instructions have been received by the relevant Record Date. Payment of any
interest on any Exchange Junior Subordinated Debt Security will be made to the
person in whose name such Exchange Junior Subordinated Debt Security is
registered at the close of business on the Record Date for such interest, except
in the case of defaulted interest. The Corporation may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent; however
the Corporation will at all times be required to maintain a Paying Agent in each
Place of Payment for the Exchange Junior Subordinated Debt Securities.
Any moneys deposited with the Debenture Trustee or any Paying Agent, or
then held by the Corporation in trust, for the payment of the principal of (and
premium, if any) or interest on any Exchange Junior Subordinated Debt Security
and remaining unclaimed for two years after such principal (and premium, if any)
or interest has become due and payable shall, at the request of the Corporation,
be repaid to the Corporation and the holder of such Exchange Junior Subordinated
Debt Security shall thereafter look, as a general unsecured creditor, only to
the Corporation for payment thereof.
OPTION TO EXTEND INTEREST PAYMENT DATE. So long as no Debenture Event of Default
has occurred and is continuing, the Corporation has the right under the
Indenture to defer the payment of interest at any time or from time to time for
a period not exceeding 10 consecutive semi-annual periods with respect to each
Extension Period; provided, however, that no Extension Period may extend beyond
the Stated Maturity of the Exchange Junior Subordinated Debt Securities. At the
end of an Extension Period, the Corporation must pay all interest then accrued
and unpaid on the Exchange Junior Subordinated Debt Securities (together with
interest thereon at the annual rate of 8.70%, compounded semi-annually from the
relevant Interest Payment Date, to the extent permitted by applicable law).
During an Extension Period, interest will continue to accrue and holders of
Exchange Junior Subordinated Debt Securities (and holders of the Exchange
Capital Securities while Exchange Capital Securities are outstanding) will be
required to accrue interest income (in the form of OID) for United States
federal income tax purposes. See "Certain United States Federal Income Tax
Consequences--Interest Income and Original Issue Discount."
During any Extension Period, the Corporation may not (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Corporation's capital stock
(which includes common and preferred stock), (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Corporation (including any Other Debentures) that rank pari
passu with
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<PAGE> 49
or junior in interest to the Exchange Junior Subordinated Debt Securities
or (iii) make any guarantee payments with respect to any guarantee by the
Corporation of the debt securities of any subsidiary of the Corporation
(including any Other Guarantees) if such guarantee ranks pari passu with or
junior in interest to the Exchange Junior Subordinated Debt Securities (other
than (a) dividends or distributions in common stock of the Corporation, (b) any
declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Guarantee, (d) purchases or acquisitions of shares of the
Corporation's common stock in connection with the satisfaction by the
Corporation of its obligations under any employee benefit plan or any other
contractual obligation of the Corporation (other than a contractual obligation
ranking pari passu with or junior to the Exchange Junior Subordinated Debt
Securities), (e) as a result of a reclassification of the Corporation's capital
stock or the exchange or conversion of one class or series of the Corporation's
capital stock for another class or series of the Corporation's capital stock, or
(f) the purchase of fractional interests in shares of the Corporation's capital
stock pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged).
Prior to the termination of any Extension Period, the Corporation may
further extend such Extension Period; provided, however, that such extension
does not cause such Extension Period to exceed 10 consecutive semi-annual
periods or to extend beyond the Stated Maturity. Upon the termination of any
Extension Period and the payment of all interest then accrued and unpaid on the
Exchange Junior Subordinated Debt Securities (together with interest thereon at
the annual rate of 8.70%, compounded semi-annually, to the extent permitted by
applicable law), the Corporation may elect to begin a new Extension Period,
subject to the above requirements. No interest shall be due and payable during
an Extension Period, except at the end thereof. The Corporation must give the
Property Trustee, the Administrative Trustees and the Debenture Trustee notice
of its election of any Extension Period (or an extension thereof) at least five
Business Days prior to the earlier of (i) the date the Distributions on the
Trust Securities would have been payable except for the election to begin or
extend such Extension Period or (ii) the date the Administrative Trustees are
required to give notice to any automated quotation system or to holders of
Exchange Capital Securities of the Record Date or the date such Distributions
are payable, but in any event not less than five Business Days prior to such
Record Date. The Debenture Trustee shall give notice of the Corporation's
election to begin or extend a new Extension Period to the holders of the Capital
Securities. There is no limitation on the number of times that the Corporation
may elect to begin an Extension Period.
OPTIONAL REDEMPTION. The Exchange Junior Subordinated Debt Securities will be
redeemable, in whole or in part, at the option of the Corporation at any time
prior to Stated Maturity and on or after December 15, 2006, subject to the
Corporation having received prior approval of the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal Reserve,
at a redemption price (the "Optional Prepayment Price") equal to the following
prices, expressed in percentages of the principal amount of the Exchange Junior
Subordinated Debt Securities plus accrued but unpaid interest to but excluding
the date fixed for redemption. If redeemed during the 12-month period beginning
December 15:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2006................................................... 104.170
2007................................................... 103.753
2008................................................... 103.336
2009................................................... 102.919
2010................................................... 102.502
2011................................................... 102.085
2012................................................... 101.668
2013................................................... 101.251
2014................................................... 100.834
2015................................................... 100.417
</TABLE>
and at 100% on or after December 15, 2016.
SPECIAL EVENT PREPAYMENT. If a Special Event shall occur and be continuing, the
Corporation may, at its option and subject to receipt of prior approval of the
Federal Reserve if then required under applicable capital guidelines or policies
of the Federal Reserve, prepay the Exchange Junior Subordinated Debt Securities
prior to December 15, 2006 and within 90 days after the occurrence of such
Special Event, in whole, but not in part, at a prepayment price (the "Special
Event Prepayment Price") equal to the greater of (i) 100% of the principal
amount of such Exchange Junior Subordinated
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Debt Securities or (ii) the sum, as determined by a Quotation Agent, of the
present values of the principal amount and premium payable as part of the
Redemption Price with respect to an optional redemption of such Exchange Junior
Subordinated Debt Securities on December 15, 2006, together with scheduled
payments of interest accruing from the prepayment date to December 15, 2006 (the
"Remaining Life"), in each case discounted to the prepayment date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate, plus, in each case, accrued interest thereon to
the date of prepayment. See "--Description of Exchange Capital
Securities--Liquidation of the Trust and Distribution of Junior Subordinated
Debt Securities."
"Special Event" means a Tax Event or a Regulatory Capital Event.
"Tax Event" means the receipt by the Corporation of an opinion of
independent counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced proposed change) in, the
laws or any regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which proposed change, pronouncement or decision is announced on or after the
Issue Date, there is more than an insubstantial risk that (i) the Trust is, or
will be within 90 days of the date of such opinion, subject to United States
federal income tax with respect to income received or accrued on the Exchange
Junior Subordinated Debt Securities, (ii) interest payable by the Corporation on
the Exchange Junior Subordinated Debt Securities is not, or within 90 days of
the date of such opinion, will not be, deductible by the Corporation, in whole
or in part, for United States federal income tax purposes, or (iii) the Trust
is, or will be within 90 days of the date of such opinion, subject to more than
a de minimis amount of other taxes, duties or other governmental charges.
A "Regulatory Capital Event" means that the Corporation shall have
received an opinion of independent bank regulatory counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in the laws (or any regulations
thereunder) of the United States or any rules, guidelines or policies of the
Federal Reserve or (b) any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or such pronouncement or decision is announced on or after
the Issue Date of the Capital Securities, the Exchange Capital Securities do not
constitute, or within 90 days of the date thereof, will not constitute, Tier 1
capital Exchange (or its then equivalent); provided, however, that the
distribution of the Exchange Junior Subordinated Debt Securities in connection
with the liquidation of the Trust by the Corporation and the treatment
thereafter of the Exchange Junior Subordinated Debt Securities as other than
Tier 1 capital shall not in and of itself constitute a Regulatory Capital Event
unless such liquidation shall have occurred in connection with a Tax Event.
"Adjusted Treasury Rate" means, with respect to any prepayment date,
the rate per annum equal to (i) the yield, under the heading which represents
the average for the immediately prior week, appearing in the most recently
published statistical release designated "H.15 (519)" or any successor
publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Remaining Life (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Adjusted Treasury Rate shall be interpolated or extrapolated from such
yields on a straight-line basis, rounding to the nearest month) or (ii) if such
release (or any successor release) is not published during the week preceding
the calculation date or does not contain such yields, the rate per annum equal
to the semi-annual equivalent yield to maturity of the Comparable Treasury
Issue, calculated using a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such prepayment date, in each case calculated on the third Business Day
preceding the prepayment date, plus in each case (a) 1.25% if such prepayment
date occurs on or prior to December 15, 1997 and (b) 0.50% in all other cases.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the Remaining
Life of the Exchange Junior Subordinated Debt Securities to be prepaid that
would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity with the Remaining Life of the Junior Subordinated Debt
Securities. If no United States Treasury security has a maturity which is within
a period from three months before to three months after December 15, 2006, the
two most closely corresponding United States Treasury securities shall be used
as the Comparable Treasury Issue, and the Adjusted Treasury Rate shall be
interpolated or extrapolated on a straight-line basis, rounding to the nearest
month using such securities.
"Quotation Agent" means the Reference Treasury Dealer set forth in
clause (i) below. "Reference Treasury Dealer" means: (i) Salomon Brothers Inc
and its respective successors; provided, however, that if the foregoing shall
cease to be a primary U.S. Government securities dealer in New York City (a
"Primary Treasury Dealer"), the
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Corporation shall substitute therefor another Primary Treasury Dealer; or (ii)
any other Primary Treasury Dealer selected by the Debenture Trustee after
consultation with the Corporation.
"Comparable Treasury Price" means, with respect to any prepayment date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such prepayment date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (a) the average
of five Reference Treasury Dealer Quotations for such prepayment date, after
excluding the highest and lowest of such Reference Treasury Dealer Quotations,
or (b) if the Debenture Trustee obtains fewer than three such Reference Treasury
Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any prepayment date, the average, as determined by
the Debenture Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted in
writing to the Debenture Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such prepayment date.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each holder of Exchange Junior
Subordinated Debt Securities to be redeemed at its registered address. Unless
the Corporation defaults in payment of the Special Event Prepayment Price, on
and after the prepayment date interest ceases to accrue on the Exchange Junior
Subordinated Debt Securities.
ADDITIONAL SUMS. If the Trust is required to pay any additional taxes, duties or
other governmental charges as a result of a Tax Event, the Corporation will pay
as additional amounts on the Exchange Junior Subordinated Debt Securities such
amounts as shall be required so that the Distributions payable by the Trust
shall not be reduced as a result of any such additional taxes, duties or other
governmental charges. The Corporation has covenanted in the Indenture that, if
and so long as (i) the Trust is the holder of all Exchange Junior Subordinated
Debt Securities and (ii) a Tax Event in respect of the Trust has occurred and is
continuing, to pay Additional Sums (as defined under "--Description of Exchange
Capital Securities--Mandatory Redemption") in respect of such Trust Securities,
the Corporation will pay to the Trust such Additional Sums.
RESTRICTIONS ON CERTAIN PAYMENTS. The Corporation will also covenant that it
will not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Corporation's capital stock (which includes common and preferred stock), (ii)
make any payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities of the Corporation (including Other
Debentures) that rank pari passu with or junior in interest to the Exchange
Junior Subordinated Debt Securities or (iii) make any guarantee payments with
respect to any guarantee by the Corporation of the debt securities of any
subsidiary of the Corporation (including under Other Guarantees) if such
guarantee ranks pari passu with or junior in interest to the Exchange Junior
Subordinated Debt Securities (other than (a) dividends or distributions in
common stock of the Corporation, (b) any declaration of a dividend in connection
with the implementation of a stockholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (c) payments under the Guarantee, (d) purchases or
acquisitions of shares of the Corporation's common stock in connection with the
satisfaction by the Corporation of its obligations under any employee benefit
plan or any other contractual obligation of the Corporation (other than a
contractual obligation ranking pari passu with or junior in interest to the
Junior Subordinated Debt Securities), (e) as a result of a reclassification of
the Corporation's capital stock or the exchange or conversion of one class or
series of the Corporation's capital stock for another class or series of the
Corporation's capital stock or (f) the purchase of fractional interests in
shares of the Corporation's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged),
if at such time (i) there shall have occurred a Debenture Event of Default, (ii)
the Corporation shall be in default with respect to its payment of any
obligations under the Exchange Guarantee or (iii) the Corporation shall have
given notice of its election of an Extension Period as provided in the Indenture
and shall not have rescinded such notice, or such Extension Period, or any
extension thereof, shall be continuing.
MODIFICATION OF INDENTURE. From time to time the Corporation and the Debenture
Trustee may, without the consent of the holders of Exchange Junior Subordinated
Debt Securities, amend, waive or supplement the Indenture for specified
purposes, including, among other things, curing ambiguities, defects or
inconsistencies (provided that any such action does not materially adversely
affect the interest of the holders of Exchange Junior Subordinated Debt
Securities or the holders of the Exchange Capital Securities so long as they
remain outstanding) and qualifying, or maintaining the qualification
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of, the Indenture under the Trust Indenture Act. The Indenture contains
provisions permitting the Corporation and the Debenture Trustee, with the
consent of the holders of not less than a majority in principal amount of
Exchange Junior Subordinated Debt Securities, to modify the Indenture in a
manner affecting the rights of the holders of Exchange Junior Subordinated Debt
Securities; provided, however, that no such modification may, without the
consent of the holder of each outstanding Exchange Junior Subordinated Debt
Security so affected, (i) change the Stated Maturity, or reduce the principal
amount of the Exchange Junior Subordinated Debt Securities, or reduce the rate
or extend the time of payment of interest thereon or (ii) reduce the percentage
of principal amount of Exchange Junior Subordinated Debt Securities, the holders
of which are required to consent to any such modification of the Indenture.
In addition, the Corporation and the Debenture Trustee may execute,
without the consent of any holder of Exchange Junior Subordinated Debt
Securities, any supplemental Indenture for the purpose of creating any Other
Debentures.
DEBENTURE EVENTS OF DEFAULT. The Indenture provides that any one or more of the
following described events with respect to the Exchange Junior Subordinated Debt
Securities that has occurred and is continuing constitutes a "Debenture Event of
Default":
(i) failure for 30 days to pay any interest on the Exchange
Junior Subordinated Debt Securities when due (subject to the deferral
of any due date in the case of an Extension Period); or
(ii) failure to pay any principal or premium, if any, on the
Exchange Junior Subordinated Debt Securities when due, whether at
maturity, upon redemption, by declaration of acceleration or otherwise;
or
(iii) failure to observe or perform in any material respect
certain other covenants contained in the Indenture for 90 days after
written notice to the Corporation from the Debenture Trustee or the
holders of at least 25% in aggregate outstanding principal amount of
the Exchange Junior Subordinated Debt Securities; or
(iv) certain events in bankruptcy, insolvency or
reorganization of the Corporation; or
(v) the voluntary or involuntary dissolution, winding-up or
termination of the Trust, except in connection with the distribution of
the Exchange Junior Subordinated Debt Securities to the holder of Trust
Securities in liquidation of the Trust, the redemption of all of the
Trust Securities of the Trust, or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration.
The holders of a majority in aggregate outstanding principal amount of
the Exchange Junior Subordinated Debt Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Debenture Trustee. The Debenture Trustee or the holders of not less than 25%
in aggregate outstanding principal amount of the Exchange Junior Subordinated
Debt Securities may declare the principal due and payable immediately upon a
Debenture Event of Default and, should the Debenture Trustee or such holders of
Exchange Junior Subordinated Debt Securities fail to make such declaration, the
holders of at least 25% in aggregate Liquidation Amount of the Exchange Capital
Securities shall have such right. The holders of a majority in aggregate
outstanding principal amount of the Exchange Junior Subordinated Debt Securities
may annul such declaration and waive the default if the default (other than the
non-payment of the principal of the Exchange Junior Subordinated Debt Securities
which has become due solely by such acceleration) has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee.
Should the holders of Exchange Junior Subordinated Debt Securities fail to annul
such declaration and waive such default, the holders of a majority in aggregate
Liquidation Amount of the Exchange Capital Securities shall have such right.
The holders of a majority in aggregate outstanding principal amount of
the Exchange Junior Subordinated Debt Securities affected thereby may, on behalf
of the holders of all the Exchange Junior Subordinated Debt Securities, waive
any past default, except a default in the payment of principal of (or premium,
if any) or interest (unless such default has been cured and a sum sufficient to
pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Exchange Junior
Subordinated Debt Security. Should the holders of such Exchange Junior
Subordinated Debt Securities fail to annul such declaration and waive such
default, the holders of a majority in aggregate Liquidation Amount of the
Exchange Capital Securities shall have such right. The Corporation is required
to file annually with the Debenture Trustee a certificate as to whether or not
the Corporation is in compliance with all the conditions and covenants
applicable to it under the Indenture.
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In case a Debenture Event of Default shall occur and be continuing, the
Property Trustee will have the right to declare the principal of and the
interest on the Exchange Junior Subordinated Debt Securities, and any other
amounts payable under the Indenture, to be forthwith due and payable and to
enforce its other rights as a creditor with respect to the Exchange Junior
Subordinated Debt Securities.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF EXCHANGE CAPITAL SECURITIES. If a
Debenture Event of Default has occurred and is continuing and such event is
attributable to the failure of the Corporation to pay interest or principal on
the Exchange Junior Subordinated Debt Securities on the date such interest or
principal is otherwise payable, a holder of Exchange Capital Securities may
institute a Direct Action. The Corporation may not amend the Indenture to remove
the foregoing right to bring a Direct Action without the prior written consent
of the holders of all of the Exchange Capital Securities. If the right to bring
a Direct Action is removed following the Exchange Offer, the Trust may become
subject to the reporting obligations under the Securities Exchange Act of 1934,
as amended. Notwithstanding any payments made to a holder of Exchange Capital
Securities by the Corporation in connection with a Direct Action, the
Corporation shall remain obligated to pay the principal of or interest on the
Exchange Junior Subordinated Debt Securities, and the Corporation shall be
subrogated to the rights of the holder of such Capital Securities with respect
to payments on the Exchange Capital Securities to the extent of any payments
made by the Corporation to such holder in any Direct Action.
The holders of the Exchange Capital Securities will not be able to
exercise directly any remedies, other than those set forth in the preceding
paragraph, available to the holders of the Exchange Junior Subordinated Debt
Securities unless there shall have been an Event of Default under the
Declaration. See "--Description of Exchange Capital Securities--Events of
Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS. The Indenture
provides that the Corporation shall not consolidate with or merge with or into
any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and no Person shall consolidate with
or merge with or into the Corporation or convey, transfer or lease its
properties and assets substantially as an entirety to the Corporation, unless
(i) in case the Corporation consolidates with or merges with or into another
Person or conveys or transfers its properties and assets substantially as an
entirety to any Person, the successor Person is organized under the laws of the
United States or any state or the District of Columbia, and such successor
Person expressly assumes the Corporation's obligations on the Exchange Junior
Subordinated Debt Securities issued under the Indenture; (ii) immediately after
giving effect thereto, no Debenture Event of Default, and no event which, after
notice or lapse of time or both, would become a Debenture Event of Default,
shall have occurred and be continuing; (iii) such transaction is permitted under
the Declaration and the Exchange Guarantee and does not give rise to any breach
or violation of the Declaration or the Exchange Guarantee; and (iv) certain
other conditions as prescribed in the Indenture are met.
The general provisions of the Indenture do not afford holders of the
Exchange Junior Subordinated Debt Securities protection in the event of a highly
leveraged or other transaction involving the Corporation that may adversely
affect holders of the Exchange Junior Subordinated Debt Securities.
SUBORDINATION. In the Indenture, the Corporation has covenanted and agreed that
any Exchange Junior Subordinated Debt Securities issued thereunder shall be
subordinate and junior in right of payment to all Senior Debt to the extent
provided in the Indenture. Upon any payment or distribution of assets to
creditors upon any liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors, marshaling of assets or any bankruptcy,
insolvency, debt restructuring or similar proceedings in connection with any
insolvency or bankruptcy proceeding of the Corporation, the holders of Senior
Debt will first be entitled to receive payment in full of principal of (and
premium, if any) and interest, if any, on such Senior Debt before the holders of
Exchange Junior Subordinated Debt Securities will be entitled to receive or
retain any payment or distribution in respect thereof; provided, however, that
holders of Senior Debt shall not be entitled to receive payment of any such
amounts to the extent that such holders would be required by the subordination
provisions of such Senior Debt to pay such amounts over to the obligees on trade
accounts payable or other liabilities arising in the ordinary course of
business.
In the event of the acceleration of the maturity of the Exchange Junior
Subordinated Debt Securities, the holders of all Senior Debt outstanding at the
time of such acceleration will first be entitled to receive payment in full of
all amounts due thereon (including any amounts due upon acceleration) before the
holders of the Exchange Junior Subordinated Debt Securities will be entitled to
receive or retain any payment in respect of the principal of (or premium, if
any) or interest, if any, on the Exchange Junior Subordinated Debt Securities;
provided, however, that holders of Senior Debt shall not be entitled to receive
payment of any such amounts to the extent that such holders would be required by
the subordination provisions of such Senior Debt to pay such amounts over to the
obligees on trade accounts payable or other liabilities arising in the ordinary
course of business.
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In the event that the Corporation shall default in the payment of any
principal of (or premium, if any), or interest, if any, on any Senior Debt when
the same becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration of acceleration or otherwise, then, unless and
until such default shall have been cured or waived or shall have ceased to exist
or all Senior Debt shall have been paid, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made for principal, premium, if any, or interest, if any, on the Exchange Junior
Subordinated Debt Securities, or in respect of any redemption, repayment,
retirement, purchase or other acquisition of any of the Exchange Junior
Subordinated Debt Securities.
"Debt" means (i) the principal of (and premium, if any), and unpaid
interest on indebtedness for money borrowed, (ii) purchase money and similar
obligations, (iii) obligations under capital leases, (iv) guarantees,
assumptions or purchase commitments relating to, or other transactions as a
result of which the Corporation is responsible for the payment of such
indebtedness of others, (v) renewals, extensions and refunding of any such
indebtedness, (vi) interest or obligations in respect of any such indebtedness
accruing after the commencement of any insolvency or bankruptcy proceedings and
(vii) obligations associated with derivative products such as interest rate and
currency exchange contracts, foreign exchange contracts, commodity contracts and
similar arrangements; provided, however, that Debt shall not include trade
accounts payable or accrued liabilities in the ordinary course of business.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Corporation whether
or not such claim for post-petition interest is allowed in such proceeding), on
Debt of the Corporation, whether incurred on or prior to the date of the
Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are not superior in right of payment to the Exchange
Junior Subordinated Debt Securities or the Other Debentures; provided, however,
that Senior Debt shall not be deemed to include (i) any Debt of the Corporation
which, when incurred and without respect to any election under Section 1111(b)
of the United States Bankruptcy Code of 1978, as amended, was without recourse
to the Corporation, (ii) any Debt of the Corporation to any of its subsidiaries,
(iii) Debt to any employee of the Corporation, (iv) Debt which by its terms is
subordinated to trade accounts payable or accrued liabilities arising in the
ordinary course of business to the extent that payments made to the holders of
such Debt by the holders of the Exchange Junior Subordinated Debt Securities as
a result of the subordination provisions of the Indenture would be greater than
such payments otherwise would have been as a result of any obligation of such
holders of such debt to pay amounts over to the obligees on such trade accounts
payable or accrued liabilities arising in the ordinary course of business as a
result of subordination provisions to which such Debt is subject, and (v) any
other debt securities issued pursuant to the Indenture.
The Indenture places no limitation on the amount of Senior Debt that
may be incurred by the Corporation. The Corporation expects from time to time to
incur additional indebtedness constituting Senior Debt. At December 31, 1996,
the aggregate outstanding Senior Debt of the Corporation was $25 million.
RESTRICTIONS ON TRANSFER. The Exchange Junior Subordinated Debt Securities will
be issued, and may be transferred only, in minimum denominations of not less
than $1,000 and multiples of $1,000 in excess thereof. Any transfer, sale or
other disposition of Exchange Junior Subordinated Debt Securities in a
denomination of less than $1,000 shall be deemed to be void and of no legal
effect whatsoever. Any such transferee shall be deemed not to be the holder of
such Exchange Junior Subordinated Debt Securities for any purpose, including but
not limited to the receipt of payments on such Exchange Junior Subordinated Debt
Securities, and such transferee shall be deemed to have no interest whatsoever
in such Exchange Junior Subordinated Debt Securities.
GOVERNING LAW. The Indenture and the Exchange Junior Subordinated Debt
Securities will be governed by and construed in accordance with the laws of the
State of New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE. Following the Exchange Offer and
the qualification of the Indenture under the Trust Indenture Act, the Debenture
Trustee shall have and be subject to all the duties and responsibilities
specified with respect to an indenture trustee under the Trust Indenture Act.
Subject to such provisions, the Debenture Trustee is under no obligation to
exercise any of the powers vested in it by the Indenture at the request of any
holder of Exchange Junior Subordinated Debt Securities, unless offered
reasonable indemnity by such holder against the costs, expenses and liabilities
which might be incurred thereby. The Debenture Trustee is not required to expend
or risk its own funds or otherwise incur personal financial liability in the
performance of its duties if the Debenture Trustee reasonably believes that
repayment or adequate indemnity is not reasonably assured to it.
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DESCRIPTION OF EXCHANGE GUARANTEE
The Exchange Guarantee will be executed and delivered by the
Corporation concurrently with the issuance by the Trust of the Exchange Capital
Securities for the benefit of the holders from time to time of such Capital
Securities. Bankers Trust Company will act as trustee (the "Guarantee Trustee")
under the Exchange Guarantee. The Exchange Guarantee has been qualified under
the Trust Indenture Act. This summary of certain provisions of the Exchange
Guarantee does not purport to be complete and is subject to, and qualified in
its entirety by reference to, all of the provisions of the Exchange Guarantee,
including the definitions therein of certain terms, and the Trust Indenture Act.
The Guarantee Trustee will hold the Exchange Guarantee for the benefit of the
holders of the Exchange Capital Securities.
GENERAL. The Corporation will irrevocably agree to pay in full on a subordinated
basis, to the extent set forth herein, the Guarantee Payments (as defined
herein) to the holders of the Exchange Capital Securities, as and when due,
regardless of any defense, right of set-off or counterclaim that the Trust may
have or assert other than the defense of payment. The following payments with
respect to the Exchange Capital Securities, to the extent not paid by or on
behalf of the Trust (the "Guarantee Payments"), will be subject to the Exchange
Guarantee: (i) any accrued and unpaid Distributions required to be paid on the
Exchange Capital Securities, to the extent that the Trust has funds on hand
available therefor at such time, (ii) the applicable Redemption Price with
respect to Exchange Capital Securities called for redemption, to the extent that
the Trust has funds on hand available therefor at such time, or (iii) upon a
voluntary or involuntary dissolution, winding up or liquidation of the Trust
(other than in connection with the distribution of Exchange Junior Subordinated
Debt Securities to the holders of the Exchange Capital Securities or the
redemption of all of the Exchange Capital Securities) the lesser of (a) the
Liquidation Distribution, to the extent the Trust has funds available therefor
and (b) the amount of assets of the Trust remaining available for distribution
to holders of the Exchange Capital Securities upon liquidation of the Trust
after satisfaction of liabilities to creditors of the Trust as required by
applicable law. The Corporation's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Corporation to the
holders of the Exchange Capital Securities or by causing the Trust to pay such
amounts to such holders.
The Exchange Guarantee will be an irrevocable guarantee on a
subordinated basis of the Trust's obligations under the Exchange Capital
Securities, although it will apply only to the extent that the Trust has funds
sufficient to make such payments, and is not a guarantee of collection. If the
Corporation does not make interest payments on the Exchange Junior Subordinated
Debt Securities held by the Trust, the Trust will not be able to pay
Distributions on the Exchange Capital Securities and will not have funds legally
available therefor.
The Exchange Guarantee will rank subordinate and junior in right of
payment to all Senior Debt. See "--Status of the Exchange Guarantee." Because
the Corporation is a holding company, the right of the Corporation to
participate in any distribution of assets of any subsidiary, upon such
subsidiary's liquidation or reorganization or otherwise, is subject to the prior
claims of creditors of such subsidiary, except to the extent the Corporation may
itself be recognized as a creditor of that subsidiary. Accordingly, the
Corporation's obligations under the Exchange Guarantee will be effectively
subordinated to all existing and future liabilities of the Corporation's
subsidiaries, including deposits, and claimants should look only to the assets
of the Corporation for payments thereunder. See "North Fork." The Guarantee does
not limit the incurrence or issuance of other secured or unsecured debt of the
Corporation, including Senior Debt, whether under the Indenture, any other
indenture that the Corporation may enter into in the future or otherwise.
The Corporation has, through the Exchange Guarantee, the Declaration,
the Exchange Junior Subordinated Debt Securities and the Indenture, taken
together, fully, irrevocably and unconditionally guaranteed all of the Trust's
obligations under the Exchange Capital Securities. No single document standing
alone or operating in conjunction with fewer than all of the other documents
constitutes such guarantee. It is only the combined operation of these documents
that has the effect of providing a full, irrevocable and unconditional guarantee
of the Trust's obligations under the Exchange Capital Securities. See
"Relationship Among the Exchange Capital Securities, the Exchange Junior
Subordinated Debt Securities and the Exchange Guarantee."
STATUS OF THE EXCHANGE GUARANTEE. The Exchange Guarantee will constitute an
unsecured obligation of the Corporation and will rank subordinate and junior in
right of payment to all Senior Debt in the same manner as Exchange Junior
Subordinated Debt Securities.
The Exchange Guarantee will rank pari passu with all Other Guarantees
issued by the Corporation. The Exchange Guarantee will constitute a guarantee of
payment and not of collection (i.e., the guaranteed party may institute a legal
proceeding directly against the Corporation to enforce its rights under the
Exchange Guarantee without first instituting a legal proceeding against any
other person or entity). The Exchange Guarantee will be held for the benefit of
the holders of the Exchange Capital Securities. The Exchange Guarantee will not
be discharged except by payment of the Guarantee Payments in full to the extent
not paid by the Trust or upon distribution to the holders of the Exchange
Capital
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Securities of the Exchange Junior Subordinated Debt Securities. The Guarantee
does not place a limitation on the amount of additional Senior Debt that may be
incurred by the Corporation. The Corporation expects from time to time to incur
additional indebtedness constituting Senior Debt.
AMENDMENTS AND ASSIGNMENT. Except with respect to any changes which do not
materially adversely affect the rights of holders of the Exchange Capital
Securities (in which case no vote will be required), the Exchange Guarantee may
not be amended without the prior approval of the holders of not less than a
majority of the aggregate Liquidation Amount of such outstanding Exchange
Capital Securities. The manner of obtaining any such approval will be as set
forth under "--Description of Exchange Capital Securities--Voting Rights;
Amendment of the Declaration." All guarantees and agreements contained in the
Exchange Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Corporation and shall inure to the benefit of the holders
of the Exchange Capital Securities then outstanding.
EVENTS OF DEFAULT. An event of default under the Exchange Guarantee will occur
upon the failure of the Corporation to perform any of its payment or other
obligations thereunder; provided, however, that except with respect to a default
in payment of any Guarantee Payment, the Corporation shall have received notice
of default and shall not have cured such default within 60 days after receipt of
such notice. The holders of not less than a majority in aggregate Liquidation
Amount of the Exchange Capital Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of the Exchange Guarantee or to direct the exercise
of any trust or power conferred upon the Guarantee Trustee under the Exchange
Guarantee.
Any holder of the Exchange Capital Securities may institute a legal
proceeding directly against the Corporation to enforce its rights under the
Exchange Guarantee without first instituting a legal proceeding against the
Trust, the Guarantee Trustee or any other person or entity.
The Corporation, as guarantor, is required to file annually with the
Guarantee Trustee a certificate as to whether or not the Corporation is in
compliance with all the conditions and covenants applicable to it under the
Exchange Guarantee.
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS. The Exchange
Guarantee provides that the Corporation shall not consolidate with or merge with
or into any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and no Person shall consolidate with
or merge with or into the Corporation or convey, transfer or lease its
properties and assets substantially as an entirety to the Corporation, unless
(i) in case the Corporation consolidates with or merges with or into another
Person or conveys or transfers its properties and assets substantially as an
entirety to any Person, the successor Person is organized under the laws of the
United States or any state or the District of Columbia and such successor Person
expressly assumes the Corporation's obligations on the Exchange Guarantee; (ii)
immediately after giving effect thereto, no event of default under the Exchange
Guarantee, and no event which, after notice or lapse of time or both, would
become an event of default under the Exchange Guarantee, shall have happened and
be continuing; (iii) such transaction is permitted under the Declaration and the
Indenture and does not give rise to any breach or violation of the Declaration
or the Indenture; and (iv) certain other conditions as prescribed in the
Guarantee are met.
TERMINATION OF THE EXCHANGE GUARANTEE. The Exchange Guarantee will terminate and
be of no further force and effect upon full payment of the applicable Redemption
Price of the Exchange Capital Securities, upon full payment of the amounts
payable upon liquidation of the Trust or upon distribution of Exchange Junior
Subordinated Debt Securities to the holders of the Exchange Capital Securities.
The Exchange Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any holder of the Exchange Capital Securities
must restore payment of any sums paid under the Exchange Capital Securities or
the Exchange Guarantee.
GOVERNING LAW. The Exchange Guarantee will be governed by and construed in
accordance with the laws of the State of New York.
DESCRIPTION OF ORIGINAL SECURITIES
The terms of the Original Securities are identical in all materials
respects to the Exchange Securities, except that (i) the Original Securities
have not been registered under the Securities Act, are subject to certain
restrictions on transfer and are entitled to certain rights under the applicable
Registration Agreement (which rights will terminate upon consummation of
the Exchange Offer, except under limited circumstances), (ii) the Exchange
Capital Securities will not
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contain the $100,000 minimum Liquidation Amount transfer restriction and certain
other restrictions on transfer applicable to Original Capital Securities, (iii)
the Exchange Capital Securities will not provide for any increase in the
Distribution rate thereon and (iv) the Exchange Junior Subordinated Debt
Securities will not provide for any liquidated damages thereon. The Original
Securities provide that, in the event that a registration statement relating to
the Exchange Offer has not been filed by May 30, 1997 and been declared
effective by June 30, 1997, or, in certain limited circumstances, in the event a
shelf registration statement (the "Shelf Registration Statement") with respect
to the resale of the Original Capital Securities is not declared effective by
June 30, 1997, then liquidated damages will accrue at the rate of 0.25% per
annum on the principal amount of the Original Junior Subordinated Debt
Securities and Distributions will accrue at the rate of 0.25% per annum on the
Liquidation Amount of the Original Capital Securities, for the period from the
occurrence of such event until such time as such required Exchange Offer is
consummated or any required Shelf Registration Statement is effective. The
Exchange Securities are not, and upon consummation of the Exchange Offer the
Original Securities will not be, entitled to any such additional interest or
Distributions. Accordingly, holders of Original Capital Securities should review
the information set forth under "Risk Factors--Consequences of a Failure to
Exchange Original Capital Securities" and "Description of Exchange Securities."
RELATIONSHIP AMONG THE EXCHANGE CAPITAL SECURITIES, THE
EXCHANGE JUNIOR SUBORDINATED DEBT SECURITIES AND THE EXCHANGE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Exchange Capital
Securities (to the extent the Trust has funds available for the payment of such
Distributions) are irrevocably guaranteed by the Corporation as and to the
extent set forth under "--Description of Exchange Guarantee." Taken together,
the Corporation's obligations under the Exchange Junior Subordinated Debt
Securities, the Indenture, the Declaration and the Exchange Guarantee provide,
in the aggregate, a full, irrevocable and unconditional guarantee of payments of
Distributions and other amounts due on the Exchange Capital Securities. If and
to the extent that the Corporation does not make payments on the Exchange Junior
Subordinated Debt Securities, the Trust will not pay Distributions or other
amounts due on the Exchange Capital Securities. The Guarantee does not cover
payment of Distributions when the Trust does not have sufficient funds to pay
such Distributions. In such event, the remedy of a holder of Exchange Capital
Securities is to institute a Direct Action. The obligations of the Corporation
under the Exchange Guarantee are subordinate and junior in right of payment to
all Senior Debt.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on the
Exchange Junior Subordinated Debt Securities, such payments will be sufficient
to cover Distributions and other payments due on the Exchange Capital
Securities, primarily because (i) the aggregate principal amount or Prepayment
Price of the Exchange Junior Subordinated Debt Securities will be equal to the
sum of the aggregate Liquidation Amount or Redemption Price, as applicable, of
the Trust Securities; (ii) the interest rate and interest and other payment
dates on the Exchange Junior Subordinated Debt Securities will match the
Distribution rate and Distribution and other payment dates for the Capital
Securities; (iii) the Corporation shall pay for all costs, expenses and
liabilities of the Trust except the Trust's obligations to holders of Trust
Securities under such Trust Securities; and (iv) the Declaration further
provides that the Trust will not engage in any activity that is not consistent
with the limited purposes thereof.
ENFORCEMENT RIGHTS OF HOLDERS OF EXCHANGE CAPITAL SECURITIES
A holder of any Exchange Capital Security may institute a legal proceeding
directly against the Corporation to enforce its rights under the Exchange
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee, the Trust or any other person or entity.
A default or event of default under any Senior Debt would not
constitute a default or Event of Default under the Declaration. However, in the
event of payment defaults under, or acceleration of, Senior Debt, the
subordination provisions of the Indenture provide that no payments may be made
in respect of the Exchange Junior Subordinated Debt Securities until such Senior
Debt has been paid in full or any payment default thereunder has been cured or
waived. Failure to make required payments on Exchange Junior Subordinated Debt
Securities would constitute an Event of Default under the Declaration.
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LIMITED PURPOSE OF THE TRUST
The Capital Securities evidence a beneficial interest in the Trust, and the
Trust exists for the sole purpose of issuing the Trust Securities, investing the
proceeds of the Trust Securities in Junior Subordinated Debt Securities,
exchanging the Original Junior Subordinated Debt Securities and Trust Securities
in the Exchange Offer pursuant to the Indenture and engaging in other activities
necessary or incidental thereto.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or liquidation of
the Trust involving the liquidation of the Exchange Junior Subordinated Debt
Securities, after satisfaction of the liabilities of creditors of the Trust as
required by applicable law, the holders of the Trust Securities will be entitled
to receive, out of assets held by the Trust, the Liquidation Distribution in
cash. See "Description of Exchange Securities--Description of Exchange Capital
Securities--Liquidation of the Trust and Distribution of Junior Subordinated
Debt Securities." Upon any voluntary or involuntary liquidation or bankruptcy of
the Corporation, the Property Trustee, as holder of the Exchange Junior
Subordinated Debt Securities, would be a subordinated creditor of the
Corporation, subordinated in right of payment to all Senior Debt as set forth in
the Indenture, but entitled to receive payment in full of principal and
interest, before any stockholders of the Corporation receive payments or
distributions. Since the Corporation is the guarantor under the Exchange
Guarantee and has agreed to pay for all costs, expenses and liabilities of the
Trust (other than the Trust's obligations to the holders of its Trust
Securities), the positions of a holder of Exchange Capital Securities and a
holder of Exchange Junior Subordinated Debt Securities relative to other
creditors and to stockholders of the Corporation in the event of liquidation or
bankruptcy of the Corporation are expected to be substantially the same.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
In the opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special tax
counsel to the Corporation and the Trust ("Tax Counsel"), the following summary
accurately describes certain of the material United States federal income tax
consequences that may be relevant to the purchase, ownership and disposition of
Capital Securities. Unless otherwise stated, this summary deals only with
Capital Securities held as capital assets by United States Holders (defined
below) who purchase the Capital Securities upon original issuance at their
original offering price. As used herein, a "United States Holder" means (i) a
person that is a citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof, (iii) an estate the income
of which is subject to United States federal income taxation regardless of its
source, or (iv) a trust the income of which is subject to United States federal
income tax regardless of its source; provided, however, that for taxable years
beginning after December 31, 1996 (or if a trustee so elects, for taxable years
ending after August 20, 1996), a "United States Holder" shall include any trust
if a court within the United States is able to exercise primary supervision over
the administration of such trust and one or more United States fiduciaries have
the authority to control all the substantial decisions of such trust. The tax
treatment of a holder may vary depending on his, her or its particular
situation. This summary does not address all the tax consequences that may be
relevant to a particular holder or to holders who may be subject to special tax
treatment, such as banks, real estate investment trusts, regulated investment
companies, insurance companies, dealers in securities or currencies, tax-exempt
investors or persons that will hold the Capital Securities as a position in a
"straddle," as part of a "synthetic security" or "hedge," as part of a
"conversion transaction" or other integrated investment, or as other than a
capital asset. In addition, this summary does not include any description or any
alternative minimum tax consequences or the tax laws of any state, local or
foreign government that may be applicable to a holder of Capital Securities.
This summary is based on the Internal Revenue Code of 1986, as amended, the
Treasury regulations promulgated thereunder and administrative and judicial
interpretations thereof, as of the date hereof, all of which are subject to
change, possibly on a retroactive basis. The authorities on which this summary
is based are subject to various interpretations and the opinions of Tax Counsel
are not binding on the Internal Revenue Service (the "IRS") or the courts,
either of which could take a contrary position. Moreover, no rulings have been
or will be sought from the IRS with respect to the transactions described
herein.
HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE CAPITAL
SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN, AND
OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN UNITED STATES FEDERAL OR
OTHER TAX LAWS. FOR A DISCUSSION OF THE POSSIBLE REDEMPTION OF THE CAPITAL
SECURITIES UPON THE OCCURRENCE OF CERTAIN TAX EVENTS SEE "DESCRIPTION OF
EXCHANGE
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SECURITIES--DESCRIPTION OF EXCHANGE CAPITAL SECURITIES--LIQUIDATION OF THE TRUST
AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES."
EXCHANGE OF CAPITAL SECURITIES
The exchange of Original Securities for Exchange Securities should not
be a taxable event to holders for United States federal income tax purposes. The
exchange of Original Securities for Securities pursuant to the Exchange Offer
should not be treated as an "exchange" for United States federal income tax
purposes because the Exchange Securities should not be considered to differ
materially in kind or extent from the Original Securities and because the
exchange will occur by operation of the terms of the Original Securities.
Accordingly, the Exchange Capital Securities should have the same issue price as
the Original Capital Securities, and a holder should have the same adjusted tax
basis and holding period in the Exchange Capital Securities as the holder had in
the Original Capital Securities immediately before the exchange. Moreover, a
holder which had acquired Original Capital Securities with either market
discount or bond premium will be treated as holding Exchange Capital Securities
with the same amount of market discount or bond premium and will be required to
include such market discount in or deduct such bond premium from their income in
the same manner as on the Original Capital Securities. Holders are urged to
consult their tax advisors regarding the applicability of the market discount
and bond premium rules.
CLASSIFICATION OF THE JUNIOR SUBORDINATED DEBT SECURITIES
In connection with the issuance of the Junior Subordinated Debt
Securities, Tax Counsel is of the opinion that, under current law, and based on
certain representations, facts and assumptions set forth in such opinion, the
Junior Subordinated Debt Securities will be classified as indebtedness for
United States federal income tax purposes. The Corporation, the Trust and the
holders of the Capital Securities (by acceptance of a beneficial interest in a
Capital Security) will agree to treat the Junior Subordinated Debt Securities as
indebtedness for all United States federal income tax purposes.
An opinion of the Tax Counsel is not binding on the IRS or the
courts. No rulings have been or are expected to be sought from the IRS with
respect to the transactions described herein and no assurance can be given that
the IRS will not take contrary positions. Moreover, no assurance can be given
that the opinions expressed herein will not be challenged by the IRS or, if
challenged, that the challenge will not be successful.
CLASSIFICATION OF THE TRUST
In connection with the issuance of the Capital Securities, Tax Counsel
is of the opinion that, under current law and assuming full compliance with the
terms of the Declaration and other documents, and based upon certain facts and
assumptions contained in such opinion, the Trust will be classified as a grantor
trust for United States federal income tax purposes and not as an association
taxable as a corporation. Accordingly, for United States federal income tax
purposes, each holder of Capital Securities generally will be considered the
owner of an undivided interest in the Junior Subordinated Debt Securities and,
thus, will be required to include in its gross income its allocable share of
interest (or OID) on the Junior Subordinated Debt Securities.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under applicable Treasury regulations, a debt instrument will be deemed
to be issued with OID if there is more than a remote contingency that periodic
stated interest payments due on the instrument will not be timely paid. Because
the exercise by the Corporation of its option to defer the payment of stated
interest on the Capital Securities would prevent the Corporation from declaring
dividends on any class of equity, the Corporation believes that the likelihood
of its exercising the option is remote within the meaning of such regulations.
As a result, the Corporation intends to take the position, based on the advice
of Tax Counsel, that the Junior Subordinated Debt Securities will not be deemed
to be issued with OID. Accordingly, based upon this position, and except as set
forth below, stated interest on the Junior Subordinated Debt Securities
generally will be taxable to a holder as ordinary income at the time it is paid
or accrued in accordance with such holder's regular method of tax accounting.
If, however, the Corporation exercises its right to defer payments of
interest on the Junior Subordinated Debt Securities, the Junior Subordinated
Debt Securities will become OID instruments at such time and, consequently,
holders of the Capital Securities will be required to accrue their pro rata
share of OID (which will include both the stated interest and the de minimis
OID, if any, on the Junior Subordinated Debt Securities) on a daily basis during
the Extension Period, even though the Corporation will not pay such interest
until the end of the Extension Period, and even though some holders may use the
cash method of tax accounting. Moreover, thereafter the Junior Subordinated Debt
Securities will be taxed as OID instruments for as long as they remain
outstanding. Thus, even after the end of an Extension Period, all holders would
be required to continue to include their pro rata share of OID on the Junior
Subordinated Debt Securities in income on a daily basis, regardless of their
method of tax accounting and in advance of the receipt of the cash attributable
to such interest income. Under the OID economic accrual rules, a holder would
accrue an amount of interest
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income each year that approximates the stated interest payments called for under
the terms of the Junior Subordinated Debt Securities, and actual cash payments
of interest on the Junior Subordinated Debt Securities would not be reported
separately as taxable income. Any amount of OID included in a holder's gross
income (whether or not during an Extension Period) with respect to a Capital
Security will increase such holder's tax basis in such Capital Security, and the
amount of Distributions received by a holder in respect of such accrued OID will
reduce the tax basis of such Capital Security.
The Treasury regulations described above have not yet been addressed in
any rulings or other interpretations by the IRS, and it is possible that the IRS
could take a contrary position. If the IRS were to assert successfully that the
stated interest on the Junior Subordinated Debt Securities was OID regardless of
whether the Corporation exercises its option to defer payments of interest on
such debt securities, all holders of Capital Securities would be required to
include such OID in income on a daily economic accrual basis as described above.
Because income on the Capital Securities will constitute interest or
OID, corporate holders of Capital Securities will not be entitled to a
dividends-received deduction with respect to any income recognized by such
holders with respect to the Capital Securities.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES OR CASH UPON LIQUIDATION OF
THE TRUST
As described under the caption "Description of Exchange
Securities--Description of Exchange Capital Securities--Liquidation of the Trust
and Distribution of Junior Subordinated Debt Securities," Junior Subordinated
Debt Securities may be distributed to holders in exchange for the Capital
Securities and in liquidation of the Trust. Under current law, such a
distribution would be non-taxable and will result in the holder receiving
directly its pro rata share of the Junior Subordinated Debt Securities
previously held indirectly through the Trust, with a holding period and
aggregate tax basis equal to the holding period and aggregate tax basis such
holder had in its Capital Securities before such distribution. If, however, the
liquidation of the Trust were to occur because the Trust is subject to United
States federal income tax with respect to income accrued or received on the
Junior Subordinated Debt Securities, the distribution of the Junior Subordinated
Debt Securities to holders would be a taxable event to the Trust and to each
holder, and a holder would recognize gain or loss as if the holder had exchanged
its Capital Securities for the Junior Subordinated Debt Securities it received
upon liquidation of the Trust. Moreover, a holder's holding period in the Junior
Subordinated Debt Securities would begin on the date such Junior Subordinated
Debt Securities were received.
A holder would accrue interest in respect of the Junior Subordinated
Debt Securities received from the Trust in the manner described above under
"--Interest Income and Original Issue Discount."
Under certain circumstances described herein (see "--Description of
Exchange Capital Securities--Mandatory Redemption"), the Junior Subordinated
Debt Securities may be redeemed for cash, with the proceeds of such redemption
distributed to holders in redemption of their Capital Securities. Under current
law, such a redemption would constitute a taxable disposition of the redeemed
Capital Securities for United States federal income tax purposes, and a holder
would recognize gain or loss as if it sold such redeemed Capital Securities for
cash. See "--Sales of Capital Securities."
SALES OF CAPITAL SECURITIES
A holder that sells Capital Securities (including a redemption of
Capital Securities by the Corporation) will recognize gain or loss equal to the
difference between the amount realized by the holder on the sale of the Capital
Securities (except to the extent that such amount realized is characterized as a
payment in respect of accrued but unpaid interest on such holder's allocable
share of the Junior Subordinated Debt Securities that the holder had not
included in gross income previously) and the holder's adjusted tax basis in the
Capital Securities sold or redeemed. Such gain or loss generally will be a
capital gain or loss, and generally will be a long-term capital gain or loss if
the Capital Securities have been held for more than one year. Subject to certain
limited exceptions, capital losses cannot be applied to offset ordinary income
for United States federal income tax purposes.
PROPOSED TAX LEGISLATION
On February 6, 1997, as part of President Clinton's Fiscal 1998 Budget
Proposal, the United States Treasury Department proposed legislation that would,
among other things, deny an issuer a deduction for United States federal income
tax purposes for the payment of interest on instruments with characteristics
similar to the Junior Subordinated Debt Securities. If the proposed legislation
were enacted in its current form, it is not expected to apply to the Junior
Subordinated Debt Securities since the proposed effective date for this
provision will be the date of first committee action, which has not yet
occurred. There can be no assurances, however, that the proposed legislation,
in enacted, or similar legislation enacted after the date hereof would not
adversely affect the tax treatment of the Junior Subordinated Debt Securities,
resulting in a Tax Event, which may permit the Corporation, upon the receipt of
any required regulatory approval, to cause a redemption of the Trust Securities
at the Special Event Redemption Price by electing to prepay the Junior
Subordinated Debt Securities at the Special Event Prepayment Price. See
"Description of Exchange Securities--Description of Exchange Capital Securities
- --Mandatory Redemption " and "Description of Exchange Securities--Description
of Exchange Junior Subordinated Debt Securities--Special Event Prepayment."
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February 10, 1997, which will include a proposal similar to the Proposed
Legislation. On March 29, 1996, Senate Finance Committee Chairman William V.
Roth, Jr. and House Ways and Means Committee Chairman Bill Archer issued the
Joint Statement indicating their intent that the Proposed Legislation, if
adopted by either of the tax-writing committees of Congress, would have an
effective date that is no earlier than the date of "appropriate Congressional
action." In addition, subsequent to the publication of the Joint Statement,
Senator Daniel Patrick Moynihan and Representatives Sam M. Gibbons and Charles
B. Rangel wrote the Democrat Letters, which concurred with the view expressed in
the Joint Statement. If the principles contained in the Joint Statement and the
Democrat Letters were followed and if the Proposed Legislation or similar
legislation were to be enacted, such legislation would not apply to the Junior
Subordinated Debt Securities. There can be no assurance, however, that
legislation enacted after the date hereof will not adversely affect the tax
treatment of the Junior Subordinated Debt Securities or that such treatment will
not cause a Tax Event that may result in the redemption of the Junior
Subordinated Debt Securities for cash, in which event the holders of the Capital
Securities would receive cash in redemption of their Capital Securities. See
"Description of Exchange Securities--Description of Exchange Capital
Securities--Mandatory Redemption" and "--Description of Exchange Junior
Subordinated Debt Securities--Special Event Prepayment."
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any
corporation, individual, partnership, estate or trust that is not a U.S. Holder
for United States federal income tax purposes.
Under present United States federal income tax laws: (i) payments by
the Trust or any of its paying agents to any holder of a Capital Security who or
which is a United States Alien Holder will not be subject to United States
federal withholding tax; provided that, (a) the beneficial owner of the Capital
Security does not actually or constructively own 10 percent or more of the total
combined voting power of all classes of stock of the Corporation entitled to
vote, (b) the beneficial owner of the Capital Security is not a controlled
foreign corporation that is related to the Corporation through stock ownership,
and (c) either (A) the beneficial owner of the Capital Security certifies to the
Trust or its agent, under penalties of perjury, that it is not a United States
holder and provides its name and address or (B) a securities clearing
organization, bank or other financial institution that holds customers'
securities in the ordinary course of its trade or business (a "Financial
Institution"), and holds the Capital Security in such capacity, certifies to the
Trust or its agent, under penalties of perjury, that such statement has been
received from the beneficial owner by it or by a Financial Institution between
it and the beneficial owner and furnishes the Trust or its agent with a copy
thereof; and (ii) a United States Alien Holder of a Capital Security will not be
subject to United States federal withholding tax on any gain realized upon the
sale or other disposition of a Capital Security.
INFORMATION REPORTING TO HOLDERS
Generally, income on the Capital Securities will be reported to holders
on Forms 1099, which forms should be mailed to holders of Capital Securities by
January 31 following each calendar year.
BACKUP WITHHOLDING
Payments made on, and proceeds from the sale of, the Capital Securities
may be subject to a "backup" withholding tax of 31 percent unless the holder
complies with certain identification requirements. Any withheld amounts will be
allowed as a credit against the holder's United States federal income tax,
provided the required information is provided to the IRS.
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS
INCLUDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A
HOLDER'S PARTICULAR SITUATION. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH
RESPECT TO THE
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TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE
CAPITAL SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN
AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGE IN UNITED STATES FEDERAL
OR OTHER TAX LAWS.
ERISA CONSIDERATIONS
Each fiduciary of a pension, profit-sharing or other employee benefit
plan (a "Plan") subject to the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), should consider the fiduciary standards of ERISA in the
context of the Plan's particular circumstances before authorizing an investment
in the Capital Securities. Accordingly, among other factors, the fiduciary
should consider whether the investment would satisfy the prudence and
diversification requirements of ERISA and would be consistent with the documents
and instruments governing the Plan.
Section 406 of ERISA and Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code") prohibit Plans, as well as individual retirement
accounts and Keogh plans subject to Section 4975 of the Code (also "Plans"),
from engaging in certain transactions involving "plan assets" with persons who
are "parties in interest" under ERISA or "disqualified persons" under the Code
("Parties in Interest") with respect to such Plan. A violation of these
"prohibited transaction" rules may result in an excise tax or other liabilities
under ERISA and/or Section 4975 of the Code for such persons, unless exemptive
relief is available under an applicable statutory or administrative exemption.
Employee benefit plans that are governmental plans (as defined in Section 3(32)
of ERISA), certain church plans (as defined in Section 3(33) of ERISA) and
foreign plans (as described in Section 4(b)(5) of ERISA) are not subject to the
requirements of ERISA or Section 4975 of the Code.
Under a regulation (the "Plan Asset Regulation") issued by the U.S.
Department of Labor (the "DOL"), the assets of the Trust would be deemed to be
"plan assets" of a Plan for purposes of ERISA and Section 4975 of the Code if
"plan assets" of the Plan were used to acquire an equity interest in the Trust
and no exception were applicable under the Plan Assets Regulation. An "equity
interest" is defined under the Plan Assets Regulation as any interest in an
entity other than an instrument which is treated as indebtedness under
applicable local law and which has no substantial equity features and
specifically includes a beneficial interest in a trust.
Pursuant to an exception contained in the Plan Assets Regulation, the
assets of the Trust would not be deemed to be "plan assets" of investing Plans
if, immediately after the most recent acquisition of any equity interest in the
Trust, less than 25% of the value of each class of equity interest in the Trust
were held by Plans, other employee benefit plans not subject to ERISA or Section
4975 of the Code (such as governmental, church and foreign plans) and entities
holding assets deemed to be "plan assets" of any Plan (collectively, "Benefit
Plan Investors"). No assurance can be given by the Initial Purchaser that the
value of the Capital Securities held by Benefit Plan Investors will be less than
25% of the total value of such Capital Securities at the completion of the
initial offering or thereafter, and no monitoring or other measures will be
taken with respect to the satisfaction of the conditions to this exception. All
of the Common Securities will be purchased and held directly or indirectly by
the Corporation.
Certain transactions involving the Trust could be deemed to constitute
direct or indirect prohibited transactions under ERISA and Section 4975 of the
Code with respect to a Plan if the Capital Securities were acquired with "plan
assets" of such Plan and assets of the Trust were deemed to be "plan assets" of
Plans investing in the Trust. For example, if the Corporation is a Party in
Interest with respect to an Investing Plan (either directly or by reason of its
ownership of the Trust or of any of the Corporation's other subsidiaries),
extensions of credit between the Corporation and the Trust (as represented by
the Junior Subordinated Debt Securities and the Guarantee) would likely be
prohibited by Section 406(a)(1)(B) of ERISA and Section 4975(c)(1)(B) of the
Code, unless exemptive relief were available under an applicable administrative
exemption (see below).
The DOL has issued five prohibited transaction class exemptions
("PTCEs") that may provide exemptive relief for direct or indirect prohibited
transactions resulting from the purchase or holding of the Capital Securities,
assuming that assets of the Trust were deemed to be "plan assets" of Plans
investing in the Trust (see above). Those class exemptions are PTCE 96-23 (for
certain transactions determined by in-house asset managers), PTCE 95-60 (for
certain transactions involving insurance company general accounts), PTCE 91-38
(for certain transactions involving bank collective investment funds), PTCE 90-1
(for certain transactions involving insurance company pooled separate accounts)
and PTCE 84-14 (for certain transactions determined by independent qualified
professional asset managers).
Because the Capital Securities may be deemed to be equity interests in
the Trust for purposes of applying ERISA and Section 4975 of the Code, the
Capital Securities may not be purchased or held by any Plan, any entity whose
underlying assets include "plan assets" by reason of any Plan's investment in
the entity (a "Plan Asset Entity") or any person investing "plan assets" of any
Plan, unless such purchaser or holder is eligible for the exemptive relief
available under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14. Any purchaser or holder
of the Capital Securities or any interest therein will be deemed to have
represented by its purchase and holding thereof that it either (a) is not a Plan
or a Plan Asset Entity and is not purchasing such securities on behalf of or
with "plan assets" of any Plan or (b) is eligible for the exemptive relief
available under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14 with respect to such
purchase or holding. See "Notice to Investors." Furthermore, to avoid certain
prohibited transactions under ERISA and the Code that could result under certain
circumstances if the Capital Securities are deemed to be such equity interests,
each investing Plan, by purchasing the Capital Securities, will be deemed to
have directed the Trust to invest in the Junior Subordinated Debentures and to
have appointed the Property Trustee.
Due to the complexity of these rules and the penalties that may be
imposed upon persons involved in non-exempt prohibited transactions, it is
particularly important that fiduciaries or other persons considering purchasing
the Capital Securities on behalf of or with "plan assets" of any Plan consult
with their counsel regarding the potential consequences if the assets of the
Trust were deemed to be "plan assets" and the availability of exemptive relief
under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14.
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PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Capital Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Capital Securities.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Capital
Securities received in exchange for Capital Securities where such Capital
Securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Trust and the Corporation have
agreed that, starting on the Expiration Date and ending on the close of business
on the 180th day following the Expiration Date, it will make this Prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until ________, 1997, all dealers effecting
transactions in the Exchange Securities may be required to deliver a prospectus.
The Trust and the Corporation will not receive any proceeds from any
sale of Exchange Capital Securities by broker-dealers. Exchange Capital
Securities received by broker-dealers for their own account pursuant to the
Exchange Offer may be sold from time to time in one or more transactions, in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Capital Securities or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or at negotiated prices. Any such resale may be
made directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Capital Securities. Any
broker-dealer that resells Exchange Capital Securities that were received by it
for its own account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Capital Securities may be deemed
to be an "underwriter" within the meaning of the Securities Act and any profit
of any such resale of Exchange Capital Securities and any commissions or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Trust and the
Corporation will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal. The Trust and the Corporation have
agreed to pay all expenses incident to the Exchange Offer (including the
expenses of one counsel for the holders of the Capital Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
holders of the Capital Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
VALIDITY OF EXCHANGE SECURITIES
The validity of the Exchange Guarantee and the Exchange Junior
Subordinated Debt Securities will be passed upon for the Corporation by Skadden,
Arps, Slate, Meagher & Flom LLP, New York, New York. Certain matters relating to
United States federal income tax consequences will be passed upon for the
Corporation by Skadden, Arps, Slate, Meagher & Flom LLP, New York, New York.
Certain matters of Delaware law relating to the validity of the Exchange Capital
Securities will be passed upon on behalf of the Trust by Skadden, Arps, Slate,
Meagher & Flom (Delaware), special Delaware counsel to the Trust.
EXPERTS
The consolidated financial statements of the Corporation and
subsidiaries as of December 31, 1996 and 1995 and for each of the years in the
three year period ended December 31, 1996, included in the Corporation's 1996
Form 10-K incorporated by reference into this Prospectus, have been incorporated
herein in reliance upon the report of KPMG Peat Marwick LLP, independent
auditors, included in the Corporation's 1996 Form 10-K and incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing. The report of KPMG Peat Marwick LLP refers to various changes in
accounting as discussed in the notes to those statements.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As authorized by Section 145 of the General Corporation Law of the
State of Delaware, each director and officer of the Corporation may be
indemnified by the Corporation against expenses (including attorney's fees,
judgments, fines and amounts paid in settlement) actually and reasonably
incurred in connection with the defense or settlement of any threatened, pending
or completed legal proceedings in which he is involved by reason of the fact
that he is or was a director or officer of the Company if he acted in good faith
and in a manner that he reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal action or
proceeding, if he had no reasonable cause to believe that his conduct was
unlawful. If the legal proceeding, however, is by or in the right of the
Corporation, the director or officer may not be indemnified in respect of any
claim, issue or matter as to which he shall have been adjudged to be liable for
negligence or misconduct in the performance of his duty to the Corporation
unless a court determines otherwise.
In addition, the Corporation maintains a directors' and officers'
liability policy.
Article Seventh of the Restated Certificate of Incorporation of the
Corporation and Article IX of the Bylaws of the Corporation provide that, to the
fullest extent permitted by law, directors of the Corporation will not be liable
for monetary damages to the Corporation or its stockholders for breaches of
their fiduciary duties.
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ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT NO.
4.1 Indenture of North Fork Bancorporation, Inc. relating to the
Junior Subordinated Debt Securities
4.2 Form of Certificate of Exchange Junior Subordinated Debt
Securities
4.3 Certificate of Trust of North Fork Capital Trust I
4.4 Declaration of Trust of North Fork Capital Trust I
4.5 Amended and Restated Declaration of Trust for North Fork Capital
Trust I
4.6 Form of Exchange Capital Security Certificate for North Fork
Capital Trust I
4.7 Form of Exchange Guarantee Agreement of North Fork Bancorporation,
Inc. relating to the Exchange Capital Securities
4.8 Registration Agreement
5.1 Opinion and consent of Skadden, Arps, Slate, Meagher & Flom, LLP
to North Fork Bancorporation, Inc. as to legality of the Exchange
Junior Subordinated Debt Securities and the Exchange Guarantee to
be issued by North Fork Bancorporation, Inc.*
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom (Delaware),
special Delaware counsel, as to legality of the Exchange Capital
Securities to be issued by North Fork Capital Trust I*
8 Opinion of Skadden, Arps, Slate, Meagher & Flom, LLP, special tax
counsel, as to certain federal income tax matters*
12.1 Computation of ratio of earnings to fixed charges (excluding
interest on deposits)
12.2 Computation of ratio of earnings to fixed charges (including
interest on deposits)
23.1 Consent of KPMG Peat Marwick LLP
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom, LLP (included in
Exhibit 5.1)*
23.4 Consent of Skadden, Arps, Slate, Meagher & Flom (Delaware)
(included in Exhibit 5.2)*
24 Power of Attorney of certain officers and directors of North Fork
Bancorporation, Inc.
25.1 Form T-1 Statement of Eligibility of Bankers Trust Company to act
as trustee under the Indenture, the Amended and Restated
Declaration of Trust of North Fork Capital Trust I and the
Exchange Guarantee for the benefit of the holders of Exchange
Capital Securities of North Fork Capital Trust I
99.1 Form of Letter of Transmittal*
99.2 Form of Notice of Guaranteed Delivery*
99.3 Form of Exchange Agent Agreement*
- --------
* To be filed by amendment.
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ITEM 22. UNDERTAKINGS
Each of the undersigned Registrants hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, as
amended, each filing of a Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
each undersigned Registrant pursuant to the provisions, or otherwise, each
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by each undersigned Registrant
of expenses incurred or paid by a director, officer of controlling person of
each Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, each Registrant will, unless in the opinion of its
counsel the matter has been settled by the controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
The undersigned Registrants hereby undertake to respond to requests for
information that is incorporated by reference into the Prospectus pursuant to
Item 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through the date
of responding to the request.
The undersigned Registrants hereby undertake to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired or involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-3
<PAGE> 67
EXHIBIT 24
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this Power of
Attorney has been signed by the following persons in the capacities and on the
dates indicated. By so signing, each of the undersigned, in his or her capacity
as a director or officer, or both, as the case may be, of North Fork
Bancorporation, Inc. (the "Corporation"), does hereby appoint John A. Kanas,
Daniel M. Healy, John Bohlsen, Allan C. Dickerson, Lloyd A. Gerard, James F.
Reeve, James H. Rich, Jr., George H. Rowsom, Raymond W. Terry, Thomas M.
O'Brien, Irvin L. Cherashore and Kurt R. Schmeller, and each of them severally,
or if more than one acts, a majority of them, his or her true and lawful
attorneys or attorney to execute in his or her name, place and stead, in his or
her capacity as a director or officer or both, as the case may be, of the
Corporation, the Registration Statement on Form S-4 to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments to said Registration Statement and all instruments necessary or
incidental in connection therewith, and to file the same with the Commission.
Each of said attorneys shall have full power and authority to do and perform in
the name and on behalf of each of the undersigned, in any and all capacities,
every act whatsoever requisite or necessary to be done in the premises as fully
and to all intents and purposes as each of the undersigned might or could do in
person, hereby ratifying and approving the acts of said attorneys and each of
them.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ John A. Kanas President, Chief Executive , 1997
- ---------------------------------------------- Officer and Chairman of
John A. Kanas the Board
/s/ Daniel M. Healy Executive Vice President , 1997
- ---------------------------------------------- and Chief Financial Officer
Daniel M. Healy
/s/ John Bohlsen Vice Chairman of the Board , 1997
- ----------------------------------------------
John Bohlsen
/s/ Thomas M. O'Brien Vice Chairman of the Board , 1997
- ----------------------------------------------
Thomas M. O'Brien
/s/ Irvin L. Cherashore Director , 1997
- ----------------------------------------------
Irvin L. Cherashore
/s/ Allan C. Dickerson Director , 1997
- ----------------------------------------------
Allan C. Dickerson
/s/ Lloyd A. Gerard Director , 1997
- ----------------------------------------------
Lloyd A. Gerard
</TABLE>
II-4
<PAGE> 68
<TABLE>
<S> <C> <C>
/s/ James F. Reeve Director , 1997
- ----------------------------------------------
James F. Reeve
/s/ James H. Rich, Jr. Director , 1997
- ----------------------------------------------
James H. Rich, Jr.
/s/ George H. Rowsom Director , 1997
- ----------------------------------------------
George H. Rowsom
/s/ Raymond W. Terry Director . 1997
- ----------------------------------------------
Raymond W. Terry
/s/ Kurt R. Schmeller Director , 1997
- ----------------------------------------------
Kurt R. Schmeller
</TABLE>
II-5
<PAGE> 69
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the North
Fork Bancorporation, Inc. certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-4 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Melville, in the State of New York, on
the day of _________, 1997.
NORTH FORK BANCORPORATION, INC.
By /s/ John A. Kanas
--------------------------------------
John A. Kanas
Chairman, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* President, Chief Executive , 1997
- ---------------------------------------------- Officer and Chairman of
John A. Kanas the Board
* Executive Vice President , 1997
- ---------------------------------------------- and Chief Financial Officer
Daniel M. Healy
* Vice Chairman of the Board , 1997
- ----------------------------------------------
John Bohlsen
* Vice Chairman of the Board , 1997
- ----------------------------------------------
Thomas M. O'Brien
* Director , 1997
- ----------------------------------------------
Irvin L. Cherashore
* Director , 1997
- ----------------------------------------------
Allan C. Dickerson
</TABLE>
II-6
<PAGE> 70
* Director ,1997
- -------------------------------
Lloyd A. Gerard
* Director ,1997
- --------------------------------
James F. Reeve
* Director ,1997
- --------------------------------
James H. Rich, Jr.
* Director ,1997
- --------------------------------
George H. Rowsom
* Director ,1997
- --------------------------------
Raymond W. Terry
* Director ,1997
- --------------------------------
Kurt R. Schmeller
*By:
-------------------------
ATTORNEY-IN-FACT
II-7
<PAGE> 71
Pursuant to the requirements of the Securities Act of 1933, North Fork
Capital Trust I certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-4 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Melville, and State of New York, on the day
of ________, 1997.
NORTH FORK CAPITAL TRUST I
By: /s/ Daniel M. Healy
---------------------------------------
Daniel M. Healy
as Administrative Trustee
By: /s/ John N. DiGiacomo
---------------------------------------
John N. DiGiacomo
as Administrative Trustee
II-8
<PAGE> 72
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Indenture of North Fork Bancorporation, Inc. relating to the
Junior Subordinated Debt Securities
4.2 Form of Certificate of Exchange Junior Subordinated Debt
Securities
4.3 Certificate of Trust of North Fork Capital Trust I
4.4 Declaration of Trust of North Fork Capital Trust I
4.5 Amended and Restated Declaration of Trust for North Fork Capital
Trust I
4.6 Form of Exchange Capital Security Certificate for North Fork
Capital Trust I
4.7 Form of Exchange Guarantee Agreement of North Fork Bancorporation,
Inc. relating to the Exchange Capital Securities
4.8 Registration Agreement
5.1 Opinion and consent of Skadden, Arps, Slate, Meagher & Flom LLP to
North Fork Bancorporation, Inc. as to legality of the Exchange
Junior Subordinated Debt Securities and the Exchange Guarantee to
be issued by North Fork Bancorporation, Inc.*
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom (Delaware),
special Delaware counsel, as to legality of the Exchange Capital
Securities to be issued by North Fork Capital Trust I*
8 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special tax
counsel, as to certain federal income tax matters*
12.1 Computation of ratio of earnings to fixed charges (excluding
interest on deposits)
12.2 Computation of ratio of earnings to fixed charges (including
interest on deposits)
23.1 Consent of KPMG Peat Marwick LLP
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom (Delaware)
(included in Exhibit 5.2)*
24 Power of Attorney of certain officers and directors of North Fork
Bancorporation, Inc.
25.1 Form T-1 Statement of Eligibility of Bankers Trust Company to act
as trustee under the Indenture, the Amended and Restated
Declaration of Trust of North Fork Capital Trust I and the
Exchange Guarantee for the benefit of the holders of Exchange
Capital Securities of North Fork Capital Trust I
99.1 Form of Letter of Transmittal*
99.2 Form of Notice of Guaranteed Delivery*
99.3 Form of Exchange Agent Agreement*
- --------
* To be filed by amendment.
<PAGE> 1
EXHIBIT 4.1
================================================================================
NORTH FORK BANCORPORATION, INC.
to
BANKERS TRUST COMPANY
Trustee
--------------------
JUNIOR SUBORDINATED INDENTURE
Dated as of December 31, 1996
================================================================================
<PAGE> 2
NORTH FORK BANCORPORATION, INC.
Reconciliation and tie between the Trust Indenture Act of 1939
(including cross-references to provisions of Sections 310 to and including 317
which, pursuant to Section 318(c) of the Trust Indenture Act of 1939, as
amended by the Trust Reform Act of 1990, are a part of and govern the Indenture
whether or not physically contained therein) and the Junior Subordinated
Indenture, dated as of December 31, 1996.
<TABLE>
<CAPTION>
Indenture
Trust Indenture Act Section Section
- --------------------------- ----------
<S> <C>
Section 310(a)(1), (2) and (5) . . . . . . . . . . . . . . . . . . . 6.09
Section 310(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 310(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08, 6.10
Section 310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
Section 311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01, 7.02(a)
Section 312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02(b)
Section 312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(a)
Section 313(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(b)
Section 313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(a), 7.03(b)
Section 313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(c)
Section 314(a)(1), (2) and (3) . . . . . . . . . . . . . . . . . . . 7.04
Section 314(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 10.04
Section 314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 314(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
Section 314(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
Section 314(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
Section 314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(a)
Section 315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02, 7.03(a)
Section 315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(b)
Section 315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(c)
Section 315(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(c)(1)
Section 315(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(c)(2)
Section 315(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(c)(3)
Section 315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.14
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.01
Section 316(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . 5.12
Section 316(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . 5.13
Section 316(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.08
Section 316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.04(f)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03
Section 317(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04
Section 317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.07
</TABLE>
- ------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Junior Subordinated Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
Definitions and Other Provisions of
-----------------------------------
General Application
-------------------
<S> <C> <C>
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.02. Compliance Certificate and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.03. Forms of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 1.04. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 1.05. Notices, Etc. to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 1.06. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 1.07. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 1.08. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 1.09. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 1.10. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 1.11. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 1.12. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 1.13. Non-Business Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE II
Security Forms
--------------
SECTION 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.02. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.03. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.04. Additional Provisions Required in
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 2.05. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE III
The Securities
--------------
SECTION 3.01. Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 3.02. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 3.03. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.04. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 3.05. Global Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 3.06. Registration, Transfer and Exchange
Generally; Certain Transfers and
</TABLE>
i
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
Exchanges; Restricted Securities
Legends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 3.08. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 3.09. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 3.10. Cancelation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 3.11. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 3.12. Deferrals of Interest Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 3.13. Agreed Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 3.14. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE IV
Satisfaction and Discharge
--------------------------
SECTION 4.01. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 4.02. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE V
Remedies
--------
SECTION 5.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 5.02. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 5.03. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 5.04. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 5.05. Trustee May Enforce Claim Without
Possession of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 5.06. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 5.07. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 5.08. Unconditional Right of Holders to
Receive Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 5.09. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 5.10. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 5.11. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 5.12. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 5.13. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 5.14. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 5.15. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE VI
The Trustee
-----------
SECTION 6.01. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 6.02. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 6.03. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 6.04. Not Responsible for Recitals or
Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 6.05. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 6.06. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 6.07. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 6.08. Disqualification; Conflicting
Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 6.09. Corporate Trustee Required,
Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 6.10. Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 6.11. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 6.12. Merger, Conversion, Consolidation
or Succession to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 6.13. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 6.14. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 6.15. Trustee's Rights and Obligations
After Qualification of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
ARTICLE VII
Holder's Lists and Reports
--------------------------
by Trustee and Company
----------------------
SECTION 7.01. Company to Furnish Trustee Names
and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 7.02. Preservation of Information,
Communications to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 7.03. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 7.04. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
</TABLE>
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ARTICLE VIII
Consolidation, Merger, Conveyance,
----------------------------------
Transfer or Lease
-----------------
SECTION 8.01. Company May Consolidate, etc., Only
on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 8.02. Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures without
Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 9.02. Supplemental Indentures with
Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 9.03. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 9.04. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 9.05. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 9.06. Reference in Securities to
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
ARTICLE X
Covenants
---------
SECTION 10.01 Payment of Principal, Premium
and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 10.02. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 10.03. Money for Security Payments to be
Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 10.04. Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 10.05. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 10.06. Payment of the Trust's Costs
and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 10.07. Additional Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 10.08. Information Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
</TABLE>
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<TABLE>
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ARTICLE XI
Redemption or Prepayment of Securities
--------------------------------------
SECTION 11.01. Applicability of This Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
SECTION 11.02. Election To Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 11.03. Selection of Securities to be
Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 11.04. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
SECTION 11.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 11.06. Payment of Securities Called for
Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 11.07. Company's Right of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
ARTICLE XII
Exchange and Registration Rights
--------------------------------
SECTION 12.01. Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
SECTION 12.02. Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 12.03. Liquidated Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 12.04. Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
ARTICLE XIII
Sinking Funds
-------------
SECTION 13.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
SECTION 13.02. Satisfaction of Sinking Fund
Payments with Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
SECTION 13.03. Redemption of Securities for
Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
ARTICLE XIV
Subordination of Securities
---------------------------
SECTION 14.01. Securities Subordinate to Senior
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
SECTION 14.02. Payment Over of Proceeds Upon
Dissolution, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
SECTION 14.03. Prior Payment to Senior Debt
Upon Acceleration of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
SECTION 14.04. No Payment When Senior Debt in
</TABLE>
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<S> <C>
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
SECTION 14.05. Payment Permitted If No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
SECTION 14.06. Subrogation to Rights of Holders
of Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
SECTION 14.07. Provisions Solely to Define
Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
SECTION 14.08. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
SECTION 14.09. No Waiver of Subordination
Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
SECTION 14.10. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
SECTION 14.11. Reliance on Judicial Order or
Certificate of Liquidating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
SECTION 14.12.Trustee Not Fiduciary for Holders
of Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
SECTION 14.13. Rights of Trustee as Holder of
Senior Debt; Preservation of
Trustee's Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
SECTION 14.14. Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
SECTION 14.15. Certain Conversions or Exchanges
Deemed Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Exhibit A - Form of Restricted Securities Certificate
</TABLE>
vi
<PAGE> 9
EXECUTION COPY
JUNIOR SUBORDINATED INDENTURE, dated as of
December 31, 1996, between NORTH FORK BANCORPORATION,
INC., a bank holding company established under the
laws of Delaware (hereinafter called the "Company")
having its principal office at 275 Broad Hollow Road,
Melville, New York 11747, and BANKERS TRUST COMPANY,
a New York banking corporation, as Trustee
(hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
junior subordinated debt securities in series (hereinafter called the
"Securities") of substantially the tenor hereinafter provided, including,
without limitation, Securities issued to evidence loans made to the Company of
the proceeds from the issuance from time to time by one or more business trusts
(each a "North Fork Capital Trust" and, collectively, the "North Fork Capital
Trusts") of preferred trust interests in such North Fork Capital Trusts (the
"Capital Securities") and common interests in such North Fork Capital Trusts
(the "Common Securities" and, collectively with the Capital Securities, the
"Trust Securities"), and to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered.
NOW THEREFORE, THIS INDENTURE WITNESSETH: For and in
consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate
<PAGE> 10
benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) The terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular.
(2) All other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein.
(3) All accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles which are generally accepted at the date or time of such
computation; provided, that when two or more principles are so generally
accepted, it shall mean that set of principles consistent with those in use by
the Company.
(4) The words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Additional Interest" means the interest, if any, that shall
accrue on any interest on the Securities of any series the payment of which has
not been made on the applicable Interest Payment Date and which shall accrue at
the rate per annum specified or determined as specified in any Officers'
Certificate delivered pursuant to Section 3.01 of the Indenture.
2
<PAGE> 11
"Additional Sums" has the meaning specified in Section 10.06.
"Adjusted Treasury Rate" means, with respect to any prepayment
date, the rate per annum equal to (i) the yield, under the heading which
represents the average for the immediately prior week, appearing in the most
recently published statistical release designated "H.15 (519)" or any successor
publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury Constant Maturities,"
for the maturity corresponding to the Remaining Life (if no maturity is within
three months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Adjusted Treasury Rate shall be interpolated or extrapolated from such
yields on a straight-line basis, rounding to the nearest month) or (ii) if such
release (or any successor release) is not published during the week preceding
the calculation date or does not contain such yields, the rate per annum equal
to the semi-annual equivalent yield to maturity of the Comparable Treasury
Issue, calculated using a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price
for such prepayment date, in each case calculated on the third Business Day
preceding the prepayment date, plus in each case (a) 1.25% if such prepayment
occurs on or prior to December 15, 1997 and (b) 0.50% in all other cases.
"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 Company shall not be deemed to include any North Fork Capital Trust to
which Securities have been issued. 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.
3
<PAGE> 12
"Agent Member" means any member of, or participant in, the
Depositary.
"Amended and Restated Declaration of Trust" for each series of
Securities has the meaning specified in the Officers' Certificate for such
series delivered pursuant to Section 3.01 of this Indenture.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Board of Directors" means either the board of directors of
the Company or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors, or such committee of the Board of Directors
or officers of the Company 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 Trustee.
"Business Day" means any day other than (i) a Saturday or
Sunday, (ii) a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed, or (iii) a
day on which the Corporate Trust Office of the Trustee, or, with respect to the
Securities of a series issued to a North Fork Capital Trust, the principal
office of the Property Trustee under the related Trust Agreement, is closed for
business.
"Capital Securities" has the meaning specified in the first
recital of this Indenture, and shall include, where appropriate, Exchange
Capital Securities as defined in Article XII.
"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 under the execution of this instrument such
Commission is not existing and performing the duties
4
<PAGE> 13
now assigned to it under the Trust Indenture Act, then the body performing such
duties on such date.
"Common Securities" has the meaning specified in the first
recital of this Indenture.
"Common Stock" means the common stock, $2.50 par value, of the
Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, the
written request or order signed in the name of the Company by the Chairman,
Chief Executive Officer, President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity comparable to the
Remaining Life of the Security to be prepaid that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity with the
Remaining Life of the Securities. If no United States Treasury Security has a
maturity which is within a period from three months before to three months
after December 15, 2006, the two most closely corresponding United States
Treasury securities shall be used as the Comparable Treasury Issue, and the
Adjusted Treasury Rate shall be interpolated or extrapolated on a straight-line
basis, rounding to the nearest month using such securities.
"Comparable Treasury Price" means, with respect to any
prepayment date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third Business Day preceding such prepayment date, as set forth in the
daily statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations
5
<PAGE> 14
for U.S. Government Securities" or (ii) if such release (or any successor
release) is not published or does not contain such prices on such Business Day,
(a) the average of five Reference Treasury Dealer Quotations for such
prepayment date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office as of the date of this Indenture is located at Four
Albany Street, New York, New York 10006, Attention: Corporate Trust and Agency
Group--Corporate Market Services.
"Corporation" includes a corporation, association, company,
joint-stock company or business trust.
"Declaration of Trust" for each series of Securities has the
meaning specified in the Officers' Certificate for such series delivered
pursuant to Section 3.01 of this Indenture.
"Debt" means (i) the principal of and premium, if any, and
unpaid interest on indebtedness for money borrowed, (ii) purchase money and
similar obligations, (iii) obligations under capital leases, (iv) guarantees,
assumptions or purchase commitments relating to, or other transactions as a
result of which the Company is responsible for the payment of, such
indebtedness of others, (v) renewals, extensions and refunding of any such
indebtedness, (vi) interest or obligations in respect of any such indebtedness
accruing after the commencement of any insolvency or bankruptcy proceedings and
(vii) obligations associated with derivative products such as interest rate and
currency exchange contracts, foreign exchange contracts, commodity contracts
and similar arrangements; provided, however, that Debt shall not include trade
accounts payable or accrued liabilities in the ordinary course of business.
"Defaulted Interest" has the meaning specified in Section
3.08.
6
<PAGE> 15
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 3.01 with respect to such series (or any successor thereto (a
"Successor Depositary")).
"Discount Security" means any security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Dollar" means the currency of the United States of America
that, as at the time of payment, is legal tender for the payment of public and
private debts.
"DTC" means The Depository Trust Company.
"Event of Default", unless otherwise specified in the
supplemental indenture creating a series of Securities, has the meaning
specified in Article V.
"Extension Period" has the meaning specified in Section 3.12.
"Federal Reserve" means the Board of Governors of the Federal Reserve System.
"Foreign Currency" means any currency issued by the government
of one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"Global Security" means a Security in the form prescribed in
Section 2.04 evidencing all or part of a series of Securities, issued to the
Depositary of its nominee for such series, and registered in the name of such
Depositary or its nominee.
"Guarantee Agreement" for each series of Securities has the
meaning specified in the Officers' Certificate for such series delivered
pursuant to Section 3.01 of this Indenture.
"Holder" means a Person in whose name a Security is registered
in the Securities Register.
7
<PAGE> 16
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of each particular series of Securities established
as contemplated by Section 3.01.
"Institutional Accredited Investor" means an accredited
investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act.
"Interest Payment Date" means as to each series of Securities
the Stated Maturity of an installment of interest on such Securities.
"Interest Rate" means the rate of interest specified or
determined as specified in each Security as being the rate of interest payable
on such Security.
"Junior Subordinated Payment" has the meaning specified in
Section 14.02.
"Lien" means any mortgage, pledge, lien, security interest or
other encumbrance.
"Liquidation Amount" has the meaning specified in Section 1.01
of the Trust Agreement.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether as the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"1940 Act" means the Investment Company Act of 1940, as
amended.
"North Fork Bancorporation Guarantee" means the guarantee by
the Company of the distributions on the Trust Securities of a North Fork
Capital Trust to the extent of the Guarantee Agreement.
"North Fork Capital Trust" has the meaning specified in the
first recital of this Indenture.
"Officers' Certificate" means a certificate signed by the
Chairman and Chief Executive Officer,
8
<PAGE> 17
President, or Vice President, and by the Treasurer, the Controller, the Chief
Financial Officer, the Secretary or any Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company.
"Original Issue Date" means the date of issuance specified as
such in each Security.
"Other Debentures" means, with respect to any series of
Securities, all junior subordinated debt securities to be issued by the Company
pursuant to this Indenture, other than such series of Securities, with
substantially similar subordination terms, and which will be issued and sold
(if at all) to any North Fork Capital Trust established by the Company (if
any), and will be unsecured and subordinate and junior in right of payment to
the extent and to the manner set forth in this Indenture to all Senior Debt of
the Company.
"Other Guarantees" means, with respect to any series of
Securities, all guarantees (if any) to be issued by the Company with respect to
Capital Securities (if any) to be issued by any North Fork Capital Trust to be
established by the Company (if any), other than the guarantee related to such
series of Securities.
"Outstanding" means, when used in reference to any Securities,
as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or which have been
paid pursuant to Section 3.07, unless proof satisfactory to the
9
<PAGE> 18
Trustee is presented that any such Securities are held by Holders in
whose hands such Securities are valid, binding and legal obligations
of the Company;
provided, however, that in determining whether the Hold ers of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer actually knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
Upon the written request of the Trustee, the Company shall furnish the Trustee
promptly an Officers' Certificate listing and identifying all Securities, if
any, known by the Company to be owned or held by or for the account of the
Company, or any other obligor on the Securities or any Affiliate of the Company
or such obligor, and, subject to the provisions of Section 6.01, the Trustee
shall be entitled to accept such Officers' Certificate as conclusive evidence
of the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.
"Paying Agent" means the Trustee or any Person authorized by
the Company to pay the principal of (or premium, if any) or interest on any
Securities on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment" means, with respect to the Securities of
any series, the place or places where the
10
<PAGE> 19
principal of (and premium, if any) and interest on the Securities of such
series are payable pursuant to Sections 3.01 and 3.11.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any security authenticated and delivered under Section 3.07 in lieu
of a lost, destroyed or stolen Security shall be deemed to evidence the same
debt as the lost, destroyed or stolen Security.
"Proceeding" has the meaning specified in Section 14.02.
"Property Trustee" means, in respect of any North Fork Capital
Trust, the commercial bank or trust company identified as the "Property
Trustee" in the related Trust Agreement, solely in its capacity as Property
Trustee of such North Fork Capital Trust under each Trust Agreement and not in
its individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as therein provided.
"Quotation Agent" means the Reference Treasury Dealer set
forth in clause (i) under the definition of Reference Treasury Dealer.
"Redemption Date", when used with respect to any Security of a
series to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
"Reference Treasury Dealer" means: (i) Salomon Brothers Inc
and its respective successors; provided, however, that if the foregoing shall
cease to be a primary U.S. Government Securities dealer in New York City, the
Company shall substitute therefor another primary U.S. Government Securities
dealer in New York City; or (ii) any other primary U.S. Government Securities
dealer in New York City selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any prepayment date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable Trea-
11
<PAGE> 20
sury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00
p.m., New York City time, on the third Business Day preceding such prepayment
date.
"Regular Record Date" for the interest payable on any Interest
Payment Date with respect to the Securities of a series means, unless otherwise
provided pursuant to Section 3.01 with respect to Securities of a series, the
date which is the Business Day next preceding such Interest Payment Date.
"Regulatory Capital Event" means the Company shall have
received an opinion of independent bank regulatory counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in the laws (or any regulations
thereunder) of the United States or any rules, guidelines or policies of the
Federal Reserve Board or (b) any official administrative pronouncement or
judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or such pronouncement or decision is announced
on or after the date of original issuance of the Capital Securities, the
Capital Securities do not constitute, or within 90 days of the date thereof,
will not constitute, Tier 1 capital (or its then equivalent); provided,
however, that the distribution of the Securities in connection with the
liquidation of the Trust by the Company and the treatment thereafter of the
Securities as other than Tier 1 capital shall not in and of itself constitute a
Regulatory Capital Event unless such liquidation shall have occurred in
connection with a Tax Event.
"Remaining Life" has the meaning specified in Section 2.03.
"Responsible Officer", when used with respect to the 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
Indenture, and also, with respect to a particular matter,
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<PAGE> 21
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Restricted Security" means each Security required pursuant to
Section 3.06(c) hereof to bear a Restricted Securities Legend.
"Restricted Securities Certificate" means a certificate
substantially in the form set forth in Exhibit A to this Indenture.
"Restricted Securities Legend" means a legend substantially in
the form of the legend required in the form of Security set forth in Section
2.02 to be placed on a Restricted Security.
"Securities" or "Security" means any debt securities or debt
security, as the case may be, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Certificate" means a certificate evidencing
ownership of Securities.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 3.06.
"Senior Debt" with respect to any series of Securities means
the principal of (and premium, if any) and interest, if any (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not such claim for
post-petition interest is allowed in such proceeding), on Debt of the Company,
whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Securities or the Other Debentures;
provided, however, that Senior Debt shall not be deemed to include (a) any Debt
of the Company which, when incurred and without respect to any election under
Section 1111(b) of the U.S. Bankruptcy Code of 1978, as amended, was without
recourse to the Company; (b) any
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<PAGE> 22
Debt of the Company to any of its Subsidiaries; (c) Debt to any employee of the
Company; (d) Debt which by its terms is subordinated to trade accounts payable
or accrued liabilities arising in the ordinary course of business to the extent
that payments made to the holders of such Debt by the Holders as a result of
the subordination provisions of this Indenture would be greater than such
payments otherwise would have been as a result of any obligation of such
holders of such Debt to pay amounts over to the obligees on such trade accounts
payable or accrued liabilities arising in the ordinary course of business as a
result of the subordination provisions to which such Debt is subject; and (e)
any other debt securities issued pursuant to this Indenture.
"Special Record Date" for the payment of any Defaulted
interest means a date fixed by the Trustee pursuant to Section 3.08.
"Stated Maturity" when used with respect to any Security or
any installment of principal thereof or interest thereon means the date
specified pursuant to the terms of such Security as the date on which the
principal of such Security or such installment of interest is due and payable,
in the case of such principal, as such date may be shortened or extended as
provided pursuant to the terms of such Security and this Indenture.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.07 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
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<PAGE> 23
"Tax Event" means the receipt by the Company of an opinion of
independent counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced proposed change) in,
the laws or any regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which proposed change, pronouncement or decision is announced on or after the
Original Issue Date of the applicable series of Securities or of the applicable
Capital Securities issued by the affected North Fork Capital Trust, there is
more than an insubstantial risk that (i) such North Fork Capital Trust is, or
will be within 90 days of the date of such opinion of independent counsel,
subject to United States Federal income tax with respect to income received or
accrued on such Securities, (ii) interest payable by the Company on such series
of Securities is not, or within 90 days of the date of such opinion of
independent counsel, will not be, deductible by the Company, in whole or in
part, for United States Federal income tax purposes, or (iii) such North Fork
Capital Trust is, or will be within 90 days of the date of such opinion of
independent counsel, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
"Trust Agreement" with respect to each series of Securities
means the Declaration of Trust with respect to such series, as amended by the
Amended and Restated Declaration of Trust with respect to such series.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a Successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder
and, if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb), as amended and as in effect on the date of
this Indenture, except as provided in Sections 1.07 and 9.05.
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<PAGE> 24
"Trust Securities" has the meaning specified in the first
recital of this Indenture.
"Vice President", when used with respect to the Company, means
any duly appointed vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 1.02. Compliance Certificate and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent (including
covenants compliance with which constitutes a condition precedent), if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel that all such conditions precedent (including covenants compliance with
which constitute a condition precedent), if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided regarding conditions or covenants waived by the Holders
pursuant to Section 10.05) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not
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<PAGE> 25
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Forms of Documents Delivered to Trustee. In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one Person, or that they be
so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or given an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representation with respect to matters upon which his certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions, or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.04. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given to or taken by Holders, may be embodied in and
evidenced by one or more instruments of substantially
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<PAGE> 26
similar tenor signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments is or are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders 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 Indenture and (subject to Section 6.01) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any 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 Person acting in other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient and
in accordance with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the
Securities Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
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<PAGE> 27
(f) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to take any
action under this Indenture by vote or consent. Except as otherwise provided
herein, such record date shall be the later of 30 days prior to the first
solicitation of such consent or vote or the date of the most recent list of
Securityholders furnished to the Trustee pursuant to Section 7.01 prior to such
solicitation. If a record date is fixed, those persons who were
Securityholders at such record date (or their duly designated proxies), and
only those persons, shall be entitled to take such action by vote or consent or
to revoke any vote or consent previously given, whether or not such persons
continue to be Holders after such record date, provided, however, that unless
such vote or consent is obtained from the Holders (or their duly designated
proxies) of the requisite principal amount of Outstanding Securities prior to
the date which is the 120th day after such record date, any such vote or
consent previously given shall automatically and without further action by any
Holder be canceled and of no further effect.
SECTION 1.05. Notices, Etc. to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(1) the Trustee by any holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose (except as otherwise provided in Section
5.01 hereof) hereunder if in writing and mailed, first class, postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company.
SECTION 1.06. Notice to Holders; Waiver. Where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (un-
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<PAGE> 28
less otherwise herein expressly provided) if in writing and mailed, first class
postage prepaid, to each Holder affected by such event, at the address of such
Holder as it appears in the Securities Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 1.07. Conflict with Trust Indenture Act. This
Indenture will not be qualified under the Trust Indenture Act except upon the
effectiveness of a registration statement as contemplated in Article XII
hereof. If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by any of Section 310 to 317, inclusive, of the Trust
Indenture Act through operation of Section 318(c) thereof, such imposed duties
shall control.
SECTION 1.08. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 1.10. Separability Clause. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality or enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this
Indenture or in the Securities, express or im-
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<PAGE> 29
plied, shall give to any Person, other than the parties hereto, any Paying
Agent and their successors and assigns, the holders of Senior Debt and the
Holders of the Securities, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.12. Governing Law. This Indenture and the
Securities shall be governed by and construed in accordance with the laws of
the State of New York.
SECTION 1.13. Non-Business Days. In any case where any
Interest Payment Date, Redemption Date or Stated Maturity of any Security shall
not be a Business Day, then (notwithstanding any other provision of this
Indenture or the Securities) payment of interest or principal need not be made
on such date, but may be made on the next succeeding Business Day (and no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, until such next
succeeding Business Day) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the Interest Payment Date or Redemption Date or at the Stated Maturity, as
the case may be, such payment was originally payable.
ARTICLE II
Security Forms
SECTION 2.01. Forms Generally. The Securities of each
series and the Trustee's certificate of authentication shall be in
substantially the forms set forth in this Article, or in such other form or
forms as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with applicable tax laws or the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such securities, as evidenced by their execution of the Securities.
If the form of
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Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by
Section 3.03 with respect to the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods, if required by any
securities exchange on which the Securities may be listed, on a steel engraved
border or steel engraved borders or may be produced in any other manner
permitted by the rules or any securities exchange on which the Securities may
be listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Securities distributed to holders of book-entry Capital
Securities shall be distributed in the form of one or more Global Securities
registered in the name of a Depositary or its nominee, and deposited with the
Securities Registrar, as custodian for such Depositary, or held by such
Depositary for credit by the Depositary to the respective accounts of the
beneficial owners of the Securities represented thereby (or such other accounts
they may direct). Securities distributed to holders of Capital Securities
other than book-entry Capital Securities shall not be issued in the form of a
Global Security or any other form intended to facilitate book-entry trading in
beneficial interests in such Securities.
SECTION 2.02. Form of Face of Security.
[If this Security is a Restricted Security, insert--THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY PRIOR TO THE DATE WHICH IS THREE
22
<PAGE> 31
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH NORTH FORK BANCORPORATION, INC. (THE "CORPORATION") OR ANY AFFILIATE OF
THE CORPORATION WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
SECURITY) (THE "RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE
CORPORATION, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
CORPORATION'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN
ACCORDANCE WITH THE AMENDED AND RESTATED DECLARATION OF TRUST, A COPY OF WHICH
MAY BE OBTAINED FROM THE CORPORATION OR THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTIONS TERMINATION
DATE.]
NORTH FORK BANCORPORATION, INC.
(Title of Security)
No. $
NORTH FORK BANCORPORATION, INC., a corporation organized and
existing under the laws of Delaware (hereinafter called the "Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to , or its
registered assigns, the principal sum of Dollars on . The
Company further promises to pay interest on said principal sum from ,
or from the most recent interest payment date (each such date, an "Interest
Payment Date") on
23
<PAGE> 32
which interest has been paid or duly provided for, [monthly] [quarterly]
[semi-annually] [if applicable, insert--(subject to deferral as set forth
herein)], in arrears on [insert applicable Interest Payment Dates] of each
year, commencing , , at the rate of % per annum, until the
principal hereof shall have become due and payable, [if applicable,
insert--plus Additional Interest, if any,] until the principal hereof is paid
or duly provided for or made available for payment [if applicable, insert--and
on any overdue principal and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the rate of % per annum, compounded [monthly]
[quarterly] [semi-annually] [annually] as Additional Interest]. The amount of
interest payable for any period shall be computed on the basis of twelve 30-day
months and a 360-day year. The amount of interest payable 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. In the event that any date on which
interest is payable on this Security is not a Business Day, then a payment of
the interest payable on such date will be made on the next succeeding day which
is a Business Day (and without any interest or other payment in respect of any
such delay), [except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case] with the same force and effect as if made on the date the
payment was originally payable. A "Business Day" shall mean any day other than
(i) a Saturday or Sunday, (ii) a day on which banking institutions in The City
of New York are authorized or required by law or executive order to remain
closed or (iii) a day on which the Corporate Trust Office of the Trustee or the
Corporate Trust Office of the Property Trustee under the Trust Agreement
hereinafter referred to for North Fork Capital Trust is closed for
business. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities, as defined in the Indenture) is registered at the close of business
on the Regular Record Date for such interest installment, which shall be the
[insert definition of Regular Record Dates]. Any such interest installment not
so punctually paid or duly provided for shall forthwith cease to be payable to
24
<PAGE> 33
the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
[If applicable, insert--So long as no Event of Default has
occurred and is continuing, the Company shall have the right at any time during
the term of this Security, from time to time, to defer payment of interest on
such Security for up to consecutive [monthly] [quarterly]
[semi-annual] interest payment periods with respect to each deferral period
(each an "Extension Period"), during which Extension Periods the Company shall
have the right to make partial payments of interest on any Interest Payment
Date, and at the end of which the Company shall pay all interest then accrued
and unpaid (together with Additional Interest thereon to the extent permitted by
applicable law); provided, however, that no Extension Period may extend beyond
the Maturity of this Security. During any such Extension Period, the Company
will not (i) declare or pay any dividends or distributions on or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Company's capital stock (which includes common and preferred stock) or (ii) make
any payment of principal of, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company (including Other
Debentures) that ranks pari passu with or junior in interest to this Security or
(iii) make any guarantee payments with respect to any guarantee by the Company
of the debt securities of any Subsidiary of the Company (including Other
Guarantees) if such guarantee ranks pari passu with or junior in interest to
this Security (other than (a) dividends or distributions in Common Stock of the
Company, (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
25
<PAGE> 34
rights pursuant thereto, (c) payments under the applicable North Fork
Bancorporation Guarantee, (d) purchases or acquisitions of shares of the
Company's Common Stock in connection with the satisfaction by the Company of
its obligations under any employee benefit plan or other contractual obligation
of the Company (other than a contractual obligation ranking pari passu with or
junior to these Securities), (e) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of the Company's
capital stock, or (f) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged). Prior to the
termination of any such Extension Period, the Company may further extend such
Extension Period, provided, however, that such extension does not cause such
Extension Period to exceed consecutive [monthly] [quarterly] [semi-annual]
interest payment periods or extend beyond the Maturity of this Security. Upon
the termination of any such Extension Period and the payment of all accrued and
unpaid interest and any Additional Interest then due, the Company may elect to
begin a new Extension Period, subject to the above requirements. No interest
shall be due and payable during an Extension Period except at the end thereof.
The Company shall give the Holder of this Security and the Trustee notice of
its election to begin any Extension Period at least five Business Days prior to
the Interest Payment Date, [if applicable, insert--or, with respect to the
Securities issued to a North Fork Capital Trust, prior to the earlier of (i)
the date the Distributions on the Capital Securities would have been payable
except for the election to begin or extend such Extension Period or (ii) the
date the Administrative Trustees are required to give notice to any automated
quotation system or to holders of such Capital Securities of the record date or
the date such Distributions are payable, but in any event not less than five
Business Days prior to such record date]. There is no limitation on the number
of times the Company may elect to begin an Extension Period.
Payment of the principal of (and premium, if any) and interest
on this Security will be made at the office or agency of the Company
maintained for that purpose in the United States, in such coin or currency of
26
<PAGE> 35
the United States of America as at the time of payment is legal tender for
payment of public and private debts [if applicable, insert--; provided,
however, that at the option of the Company payment of any interest may be made
(except Securities in Global form) (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Securities Register
or (ii) by wire transfer in immediately available funds at such place and to
such account as may be designated by the Person entitled thereto as specified
in the Securities Register].
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Debt, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
actions as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, waives all notice of
the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Debt, whether now outstanding or hereinafter
incurred, and waives reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall
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<PAGE> 36
not be entitled to any benefit under the Indenture or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Date: NORTH FORK BANCORPORATION,
INC.,
[Seal]
by
[Chairman and Chief
Executive Officer,
President or
Vice President]
Attest:
[Secretary or Assistant
Secretary]
SECTION 2.03. Form of Reverse of Security. This Security is
one of a duly authorized issue of securities of the Company (herein called the
"Securities"), issued and to be issued in one or more series under a Junior
Subordinated Indenture, dated as of , as supplemented by an Officers'
Certificate dated as of , (herein called the "Indenture"), between the
Company and , as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Trustee, the Company and the Holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof[, limited in
aggregate principal amount to $ ].
All terms used in this Security that are defined in the
Indenture [if applicable, insert--and in the Amended and Restated Declaration
of Trust of [insert the
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<PAGE> 37
applicable North Fork Capital Trust ], dated as of , as amended (the
"Amended and Restated Declaration of Trust"), among North Fork Bancorporation,
Inc., as Depositor, and the Trustees named therein,] shall have the meanings
assigned to them in the Indenture or, to the extent not defined in the
Indenture, the Amended and Restated Declaration of Trust, as the case may be.
[If applicable, insert--On or after , the Company
may at any time, at its option, subject to the terms and conditions of Article
XI of the Indenture and subject to the Company having received prior approval
of the Federal Reserve if then required under applicable capital guidelines of
the Federal Reserve, redeem this Security in whole or in part at any time or
from time to time prior to maturity, at a redemption price (the "Optional
Prepayment Price") equal to the following prices, expressed in percentages of
the principal amount of the Securities together with accrued but unpaid
interest to but excluding the date fixed for redemption. If redeemed during
the 12-month period beginning :
Redemption
Year Price
---- ----------
[Insert year and redemption
prices]
and at 100% on or after .]
[If applicable, insert-- If a Tax Event or a Regulatory
Capital Event (each a "Special Event") shall occur and be continuing, the
Company may, at its option and subject to receipt of prior approval of the
Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve and subject to the provisions of Article XI of
the Indenture, prepay the Securities prior to December 15, 2006 and within 90
days after the occurrence of such Special Event, in whole (but not in part), at
a prepayment price (the "Special Event Prepayment Price") equal to the greater
of (i) 100% of the principal amount of such Securities and (ii) the sum, as
determined by a Quotation Agent, of the present values of the principal amount
and premium payable as part of
29
<PAGE> 38
the Optional Prepayment Price with respect to an optional redemption of such
Securities on December 15, 2006, together with scheduled payments of interest
accruing from the prepayment date to December 15, 2006 (the "Remaining Life"),
in each case discounted to the prepayment date on a semi-annual basis (assuming
a 360-day year consisting of 30-day months) at the Adjusted Treasury Rate,
plus, in each case, accrued interest thereon to the date of prepayment. In
the case of redemption on or after December 15, 2006 following a Special Event,
the Special Event Prepayment Price shall equal the Optional Prepayment Price
then applicable to a redemption as described above.]
In the event of redemption of this Security in part only, a
new Security or Securities of this series for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancelation hereof.
[If the Security is not a Discount Security,--If an Event of
Default with respect to Securities of this series shall occur and be
continuing, the principal of this Security may be declared due and payable in
the manner, with the effect and subject to the conditions provided in the
Indenture].
[If the Security is a Discount Security,--If an Event of
Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of this Security may be declared due and
payable in the manner, with the effect and subject to the conditions provided
in the Indenture. Such amount shall be equal to [--insert formula for
determining the amount]. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on this Security shall
terminate.]
The Indenture permits, with certain exceptions as therein
provided, the Company and the Trustee at any time to enter into a supplemental
indenture or indentures for the purpose of modifying in any manner the rights
and obligations of the Company and of the Holders of the Securities, with the
consent of the Holders of not less
30
<PAGE> 39
than a majority in principal amount of the Outstanding Securities of each
series to be affected by such supplemental indenture. The Indenture also
contains provisions permitting Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding, on behalf of
the Holders of all Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
[If the Security is not a Discount Security,--As provided in
and subject to the provisions of the Indenture, if an Event of Default with
respect to the Securities of this series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of this series may
declare the principal amount of all the Securities of this series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), provided, however, that, in the case of the Securities of
this series issued to a North Fork Capital Trust, if upon an Event of Default,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of this series fails to declare the principal of all the
Securities of this series to be immediately due and payable, the holders of at
least 25% in aggregate Liquidation Amount of the corresponding series of
Capital Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee. The Holders of a majority in aggregate
principal amount of the Outstanding Securities of these Securities may annul
such declaration and waive the default if the default (other than the
non-payment of the principal of these Securities which has become due solely by
such acceleration) has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration has
been deposited with the Trustee. Should the Holders of these Securities fail
to annul such declaration and waive such
31
<PAGE> 40
default, the holders of a majority in aggregate Liquidation Amount of the
Capital Securities shall have such right. Upon any such declaration such
specified amount of and the accrued interest (including any Additional
Interest) on all the Securities of this series shall become immediately due and
payable, provided that the payment of principal and interest (including any
Additional Interest) on such Securities shall remain subordinated to the extent
provided in Article XIV of the Indenture.]
[If the Security is a Discount Security,--As provided in and
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities of this series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than such portion of the principal amount as may be specified in the terms of
this series of all the Securities of this series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), provided that, in the case of the Securities of this series issued
to a North Fork Capital Trust, if upon an Event of Default, the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of this series fails to declare the principal of all the Securities of this
series to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount of the corresponding series of Capital Securities
then outstanding shall have such right by a notice in writing to the Company
and the Trustee. The Holders of a majority in aggregate principal amount of
the Outstanding Securities of these Securities may annul such declaration and
waive the default if the default (other than the nonpayment of the principal of
these Securities which has become due solely by such acceleration) has been
cured and a sum sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration has been deposited with the
Trustee. Should the Holders of these 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. Upon any such
declaration such specified amount of and the accrued interest (including any
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<PAGE> 41
Additional Interest) on all the Securities of this series shall become
immediately due and payable, provided that the payment of principal and
interest (including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII of the Indenture.]
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Securities Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained pursuant to Section
10.02 of the Indenture duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Securities Registrar
duly executed by, the Holder hereof or his attorney duly authorized in writing
and thereupon one or more new Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees. No service charge shall be made for
any such registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
shall treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Securities of this series are issuable only in registered
form without coupons in denominations of $ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of such series of a different authorized
33
<PAGE> 42
denomination, as requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Security intend that such Security constitute
indebtedness and agree to treat such Security as indebtedness for all United
States Federal, state and local tax purposes.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 2.04. Additional Provisions Required in Global
Security. Any Global Security issued hereunder shall, in additional to the
provisions contained in Sections 2.02 and 2.03, bear a legend in substantially
the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depositary") or a nominee of the
Depositary. This Security is exchangeable for Securities registered
in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture and no
transfer of this Security (other than a transfer of this Security 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 limited circumstances.
Unless this Security is presented by an authorized representative of
The Depositary Trust Company (55 Water Street, New York) to North Fork
Bancorporation, Inc. or its agent for registration of transfer,
exchange or payment, and any Security issued is registered in the name
of Cede & Co. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment hereon
is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY
34
<PAGE> 43
A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein."
SECTION 2.05. Form of Trustee's Certificate of
Authentication. This is one of the Securities referred to in the within
mentioned Indenture:
as Trustee
By:
Authorized Signatory
ARTICLE III
The Securities
SECTION 3.01. Title and Terms. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of a series:
(a) the title of the securities of such series, which shall
distinguish the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of
the Securities of such series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 3.04,
3.06, 3.07, 9.06 or 11.06); provided, however, that the authorized
aggregate principal amount of such series may be increased above such
amount by a Board Resolution to such effect;
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<PAGE> 44
(c) the Stated Maturity or Maturities on which the principal
of the Securities of such series is payable or the method of
determination thereof;
(d) the rate or rates, if any, at which the Securities of
such series shall bear interest, if any, the rate or rates and extent
to which Additional Interest, if any, shall be payable in respect of
any Securities of such series, the Interest Payment Dates on which
such interest shall be payable, the right, pursuant to Section 3.12 or
as otherwise set forth therein, of the Company to defer or extend an
Interest Payment Date, and the Regular Record Date for the interest
payable on any Interest Payment Date or the method by which any of the
foregoing shall be determined;
(e) the place or places where the principal of (and premium,
if any) and interest on the Securities of such series shall be
payable, the place or places where the Securities of such series may
be presented for registration of transfer or exchange, and the place
or places where notices and demands to or upon the Company in respect
of the Securities of such series may be made;
(f) the period or periods within or the date or date on which,
if any, the price or prices at which and the terms and conditions upon
which the Securities of such series may be redeemed, in whole or in
part, at the option of the Company;
(g) the obligation or the right, if any, of the Company to
redeem, repay or purchase the Securities of such series pursuant to
any sinking fund, amortization or analogous provisions, or at the
option of a Holder thereof, and the period or periods within which,
the prices or prices at which, the currency or currencies (including
currency unit or units) in which and the other terms and conditions
upon which Securities of the series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligations;
(h) the denominations in which any Securities of such series
shall be issuable, if other than
36
<PAGE> 45
denominations of $1,000 and any integral multiple thereof;
(i) if other than Dollars, the currency or currencies
(including currency unit or units) in which the principal of (and
premium, if any) and interest, if any, on the Securities of the series
shall be payable, or in which the Securities of the series shall be
denominated and the manner of determining the equivalent thereof in
Dollars for purposes of the definition of the term "Outstanding";
(j) the additions, modifications or deletions, if any, in the
Events of Default or covenants of the Company set forth herein with
respect to the Securities of such series;
(k) if other than the principal amount thereof, the portion of
the principal amount of Securities of such series that shall be
payable upon declaration of acceleration of the Maturity thereof;
(l) the additions or changes, if any, to this Indenture with
respect to the Securities of such series as shall be necessary to
permit or facilitate the issuance of the Securities of such series in
bearer form, registrable or not registrable as to principal, and with
or without interest coupons;
(m) any index or indices used to determine the amount of
payments of principal of and premium, if any, on the Securities of
such series or the manner in which such amounts will be determined;
(n) the issuance of a temporary Global Security representing
all of the Securities of such series and exchange of such temporary
Global Security for definitive Securities of such series;
(o) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities and, in
such case, the Depositary for such Global Securities, which Depositary
shall be a clearing agency registered under the Securities Exchange
Act of 1934, as amended;
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<PAGE> 46
(p) the appointment of any Paying Agent or Agents for the
Securities of such series;
(q) the terms of any right to convert or exchange Securities
of such series into any other securities or property of the Company,
and the additions or changes, if any, to this Indenture with respect
to the Securities of such series to permit or facilitate such
conversion or exchange;
(r) the transfer restrictions and legends required to be on
the Securities;
(s) the definitions of Amended and Restated Declaration of
Trust, Declaration of Trust and Guarantee Agreement for each series;
(t) the relative degree, if any, to which the Securities of
the series shall be senior to or be subordinated to other series of
Securities in right of payment, whether such other series of
Securities are Outstanding or not; and
(u) any other terms of the Securities of such series (which
terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided
herein or in or pursuant to such Board Resolution and set forth in such
Officers' Certificate or in any such indenture supplemental hereto.
Unless otherwise provided with respect to the Securities of
any series, at the option of the Company, interest on the Securities of any
series that bears interest may be paid by (i) by mailing a check to the address
of the person entitled thereto as such address shall appear in the Securities
Register or (ii) by wire transfer in immediately available funds at such place
and to such account as may be designated by the person entitled thereto as
specified in the Securities Register.
SECTION 3.02. Denominations. The Securities of each series
shall be in registered form without coupons and shall be issuable in
denominations of $1,000
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<PAGE> 47
and any integral multiple thereof, unless otherwise specified as contemplated
by Section 3.01.
SECTION 3.03. Execution, Authentication, Delivery and
Dating. The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents under its
corporate seal reproduced or impressed thereon and attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities. At any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities executed by the Company to the Trustee for
authentication. Securities may be authenticated on original issuance from time
to time and delivered pursuant to such procedures acceptable to the Trustee
("Procedures") as may be specified from time to time by Company Order.
Procedures may authorize authentication and delivery pursuant to oral
instructions of the Company or a duly authorized agent, which instructions
shall be promptly confirmed in writing.
Prior to the delivery of a Security in any such form to the
Trustee for authentication, the Company shall deliver to the Trustee the
following:
(a) a Company Order requesting the Trustee's authentication
and delivery of all or a portion of the Securities of such series, and
if less than all, setting forth procedures for such authentication;
(b) the Board Resolution by or pursuant to which such form of
Security has been approved, and the Board Resolution, if any, by or
pursuant to which the terms of the Securities of such series have been
approved, and, if pursuant to a Board Resolution, an Officers'
Certificate describing the action taken;
39
<PAGE> 48
(c) an Officers' Certificate dated the date such certificate
is delivered to the Trustee, stating that all conditions precedent
provided for in this Indenture relating to the authentication and
delivery of Securities in such form and with such terms have been
complied with; and
(d) an Opinion of Counsel substantially to the effect that (i)
the form of such Securities has been duly authorized and approved in
conformity with the provisions of this Indenture; (ii) the terms of
such Securities have been duly authorized and determined in conformity
with the provisions of this Indenture, or, if such terms are to be
determined pursuant to Procedures, as defined above, when so
determined such terms shall have been duly authorized and determined
in conformity with the provisions of this Indenture; and (iii)
Securities in such form when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture within the
authorization as to aggregate principal amount established from time
to time by the Board of Directors and sold in the manner specified in
such Opinion of Counsel, will be the legal, valid and binding
obligations of the Company entitled to the benefits of this Indenture,
subject to applicable bankruptcy, reorganization, insolvency and
similar laws generally affecting creditors' rights, to general
equitable principles and except as enforcement thereof may be limited
by (A) requirements that a claim with respect to any Securities
denominated other than in Dollars (or a Foreign Currency or currency
unit judgment in respect of such claim) be converted into Dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments in Foreign Currencies or currency
units or payments outside the United States, and subject to such other
qualifications as such counsel shall conclude do not materially affect
the rights of Holders of such Securities.
The Trustee shall be entitled to receive the documents
referred to in clauses (b) and (d) above only
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<PAGE> 49
at or prior to the first request of the Company to the Trustee to authenticate
Securities of such series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture, or be valid or obligatory for any purpose, unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by the manual signature of one of
its authorized officers, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
SECTION 3.04. Temporary Securities. Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any denomination, substantially of the tenor of the definitive
Securities of such series in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive Securities upon
surrender of the temporary Securities at the office or agency of the Company
designated for that purpose without charge to the Holder. Upon surrender for
cancelation of any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations having the same Original Issue Date and Stated Maturity and
having the same terms as such temporary Securities. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
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<PAGE> 50
SECTION 3.05. Global Securities. (a) Each Global Security
issued under this Indenture shall be registered in the name of the Depositary
designated by the Company for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and
each such Global Security shall constitute a single Security for all purposes
of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (a) such Depositary advises the Trustee in writing that
such Depositary is no longer willing or able to properly discharge its
responsibilities as Depositary with respect to such Global Security, and the
Company is unable to locate a qualified successor, (b) the Company executes and
delivers to the Trustee a Company Order stating that the Company elects to
terminate the book-entry system through the Depositary, (c) there shall have
occurred and be continuing an Event of Default or (d) pursuant to the following
sentence. All or any portion of a Global Security may be exchanged for a
Security that has a like aggregate principal amount and is not a Global
Security upon 20 days' prior request made by the Depositary or its Agent Member
to the Securities Registrar.
(c) If any Global Security is to be exchanged for other
Securities or canceled in whole, it shall be surrendered by or on behalf of the
Depositary or its nominee to the Securities Registrar for exchange or
cancelation as provided in this Article III. If any Global Security is to be
exchanged for other Securities or canceled in part, or if another Security is
to be exchanged in whole or in part for a beneficial interest in any Global
Security, then either (i) such Global Security shall be so surrendered for
exchange or cancelation as provided in this Article III or (ii) the principal
amount thereof shall be reduced, subject to Section 3.06(b)(iv), or increased
by an amount equal to the portion thereof to be so exchanged or canceled, or
equal to the principal amount of such other Security to be so exchanged for a
beneficial interest therein, as the
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<PAGE> 51
case may be, by means of an appropriate adjustment made on the records of the
Securities Registrar, whereupon the Trustee shall instruct the Depositary or
its authorized representative to make a corresponding adjustment to its
records. Upon any such surrender or adjustment of a Global Security by the
Depositary, accompanied by registration instructions and, to the extent
required by Section 3.06, a Restricted Securities Certificate, the Trustee
shall, subject to Section 3.05(b) and as otherwise provided in this Article
III, authenticate and deliver any Securities issuable in exchange for such
Global Security (or any portion thereof) in accordance with the instructions of
the Depositary. The 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 Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for all purposes
under this Indenture and the Securities, and owners of beneficial interests in
a Global Security shall hold such interest pursuant to the rules and procedures
of the Depositary. Accordingly, any such owner's beneficial interests in a
Global Security shall be shown only on, and the transfer of such interest shall
be effected only through, records maintained by the Depositary or its nominee
or its Agent Members. Neither the Trustee nor the Securities Registrar shall
have any liability in respect of any transfers effected by the Depositary.
(e) The rights of the beneficial interests in a Global
Security shall be exercised only through the Depositary and shall be limited to
those established by law and agreements between such owners and the Depositary
and/or its Agent Members.
SECTION 3.06. Registration, Transfer and Exchange Generally;
Certain Transfers and Exchanges; Restricted Securities Legends. (a) The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of the Securities and of
transfers of Securities. Such register is herein sometimes referred to as the
"Securities Register". The Trustee is hereby appointed "Securities Registrar"
for the purpose
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of registering the Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security
at the office or agency of the Company designated for that purpose the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of the
same series of any authorized denominations, of a like aggregate principal
amount, of the same Original Issue Date and Stated Maturity and having the same
terms.
At the option of the Holder, Securities may be exchanged for
other Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Securities Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer
or exchange of Securities, but the Company 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 Securities.
Neither the Company nor the Trustee shall be required,
pursuant to the provisions of this Section, (a) to issue, transfer or exchange
any Security of any
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series during a period beginning at the opening of business 15 days before the
day of selection for redemption of Securities pursuant to Article XI and ending
at the close of business on the day of mailing of notice of redemption or (b)
to transfer or exchange any Security so selected for redemption in whole or in
part, except, in the case of any Security to be redeemed in part, any portion
thereof not to be redeemed.
(b) Certain Transfers and Exchanges. Notwithstanding any
other provision of the Indenture, transfers and exchanges of Securities and
beneficial interests in a Global Capital Security of the kinds specified in
this Section 3.06(b) shall be made only in accordance with this Section
3.06(b).
(i) Non-Global Security to Global Security. If the Holder of
a Security (other than a Global Security) wishes at any time to transfer all or
any portion of such Security to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Global Security, such transfer may be
effected only in accordance with the provisions of this clause (b)(i) and
subject to the rules and procedures of the Depositary. Upon receipt by the
Securities Registrar of (A) such Security as provided in Section 3.06(a) and
instructions satisfactory to the Securities Registrar directing that a
beneficial interest in the Global Security in a specified principal amount not
greater than the principal amount of such Security be credited to a specified
Agent Member's account and (B) a Securities Certificate duly executed by such
Holder or such Holder's attorney duly authorized in writing, then the
Securities Registrar shall cancel such Security (and issue a new Security in
respect of the untransferred portion thereof) as provided in Section 3.06(a)
and increase the aggregate principal amount of the Global Security by the
specified principal amount as provided in Section 3.05(c).
(ii) Non-Global Security to Non-Global Security. A Security
that is not a Global Security may be transferred, in whole or in part, to a
Person who takes delivery in the form of another Security that is not a Global
Security as provided in Section 3.06(a); provided, that if such Security to be
transferred is a Restricted Security, the Securities Registrar shall have
received a Restricted Securities Certificate duly executed by the
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transferor Holder or such Holder's attorney duly authorized in writing.
(iii) Exchanges between Global Security and Non-Global
Security. A beneficial interest in a Global Security may be exchanged for a
Security that is not a Global Security as provided in Section 3.05.
(iv) Limitations Relating to Principal Amount.
Notwithstanding any other provision of this Indenture and unless otherwise
specified as permitted by Section 3.01, Securities or portions thereof may be
transferred or exchanged only in principal amounts of not less than $1,000 and
integral multiples of $1,000 in excess thereof. Any transfer, exchange or
other disposition of Securities in contravention of the Section 3.06(b)(iv)
shall be deemed to be void and of no legal effect whatsoever, any such
transferee shall be deemed not to be the Holder or owner of any beneficial
interest in such Securities for any purpose, including but not limited to the
receipt of interest payable on such Securities, and such transferee shall be
deemed to have no interest whatsoever in such Securities.
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(c) Restricted Securities Legend. (i) Except as set forth
below, all Securities shall bear a Restricted Securities Legend, subject to the
following:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY PRIOR TO THE DATE WHICH IS THREE YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH NORTH FORK
BANCORPORATION, INC. (THE "CORPORATION") OR ANY AFFILIATE OF THE
CORPORATION WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
SECURITY) (THE "RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE
CORPORATION, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE CORPORATION'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM IN ACCORDANCE WITH THE AMENDED AND RESTATED DECLARATION OF
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TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE CORPORATION OR THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER
AFTER THE RESALE RESTRICTIONS TERMINATION DATE.
(ii) Subject to Section 3.06(d) and to the following clauses
of this Section 3.06(c), a Security (other than a Global Security)
that does not bear a Restricted Securities Legend may be issued in
exchange for or in lieu of a Restricted Security or any portion
thereof that bears such legend if, in the Company's judgement, placing
such a legend upon such new Security is not necessary to ensure
compliance with the registration requirements of the Securities Act,
and the Trustee, at the written direction of the Company in the form
of an Officers' Certificate, shall countersign and deliver such a new
Security as provided in this Article III.
(iii) Notwithstanding the foregoing provisions of this Section
3.06(c), a successor Security of a Security that does not bear a
Restricted Securities Legend shall not bear such form of legend unless
the Company has reasonable cause to believe that such successor
Security is a "restricted security" within the meaning of Rule 144
under the Securities Act, in which case the Trustee, at the written
direction of the Company in the form of an Officers' Certificate,
shall countersign and deliver a new Security bearing a Restricted
Securities Legend in exchange for such successor Security as provided
in this Article III.
(iv) Upon any sale or transfer of a Restricted Security
(including any Restricted Security represented by a Global Security)
pursuant to an effective registration statement under the Securities
Act or pursuant to Rule 144 under the Securities Act after such
registration ceases to be effective: (A) in the case of any Restricted
Security that is a definitive Security, the Securities Registrar shall
permit the Holder thereof to exchange such Restricted Security for a
definitive Security that does not bear the Restricted Securities
Legend and rescind the restriction on transfer of such Restricted
Security; and (B) in the case of any Restricted Security that is
represented by a Global Security, the Securities Registrar shall
permit the Holder of
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such Global Security to exchange such Global Security for another
Global Security that does not bear the Restricted Securities Legend.
(v) If Restricted Securities are being presented or
surrendered for transfer or exchange then there shall be (if so
required by the Trustee), (A) if such Restricted Securities are being
delivered to the Securities Registrar by a Holder for registration in
the name of such Holder, without transfer, a certification from such
Holder to that effect; or (B) if such Restricted Securities are being
transferred, (i) a certification from the transferor in a form
substantially similar to that attached hereto as Exhibit A, and (ii)
if the Company or Securities Registrar so requests, evidence
reasonably satisfactory to them as to the compliance with the
restrictions set forth in the Restricted Securities Legend.
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen
Securities. If any mutilated Security is surrendered to the Trustee together
with such security or indemnity as may be required by the Company or the
Trustee to save each of them harmless, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of
the same issue and series of like tenor and principal amount, having the same
Original Issue Date and Stated Maturity and bearing the same Interest Rate as
such mutilated Security, and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a bona fide purchaser, the
issuing Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same issue and series of like tenor and
principal amount, having the same Original Issue Date and Stated Maturity and
bearing the same Interest Rate as such destroyed, lost or stolen Security, and
bearing a number not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.08. Payment of Interest; Interest Rights
Preserved. Interest on any Security of any series which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date, shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest in respect of Securities of such series, except that, unless
otherwise provided in the Securities of such series, interest payable on the
Stated Maturity of a Security shall be paid to the Person to whom principal is
paid. The initial payment of interest on any Security of any series which is
issued between a Regular Record Date and the related Interest Payment Date
shall be payable as provided in such Security or in the Board Resolution
pursuant to Section 3.01 with respect to the related series of Securities.
Any interest on any Security which is payable, but is not
timely paid or duly provided for, on any
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Interest Payment Date for Securities of such series (herein called "Defaulted
Interest"), shall forthwith cease to be payable to the registered Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series in respect
of which interest is in default (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall not be more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
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Defaulted Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder of a Security of such series at the
address of such Holder as it appears in the Securities Register not less than
10 days prior to such Special Record Date. The Trustee may, in its discretion,
in the name and at the expense of the Company, cause a similar notice to be
published at least once in a newspaper, customarily published in the English
language on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered on such Special Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of the series in respect of which
interest is in default may be listed and, upon such notice as may be required
by such exchange (or by the Trustee if the Securities are not listed), if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 3.09. Persons Deemed Owners. The Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name any Security is registered as the owner of such Security for the
purpose of receiving payment of principal of and (subject to Section 3.08)
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary. No
holder of any beneficial interest in any Global Security held on its behalf by
a Depositary shall have any rights under this Indenture with respect to such
Global Security, and such Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company or the Trustee from giving effect to any
written certification, proxy, or other authorization furnished by a Depositary
or impair, as between the Depositary and such holders of beneficial interests,
the operation of custom-
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ary practices governing the exercise of the rights of the Depositary (or its
nominee) as Holder of any Security.
SECTION 3.10. Cancelation. All Securities surrendered for
payment, redemption, transfer or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee, and any such Securities
and Securities surrendered directly to the Trustee for any such purpose shall
be promptly canceled by it. The Company may at any time deliver to the Trustee
for cancelation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities shall be destroyed by the Trustee and the
Trustee shall deliver to the Company a certificate of such destruction.
SECTION 3.11. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.01 for Securities of any series,
interest on the Securities of each series for any period shall be computed on
the basis of a 360-day year of twelve 30-day months and interest on the
Securities of each series 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.
SECTION 3.12. Deferrals of Interest Payment Dates. If
specified as contemplated by Section 3.01 with respect to the Securities of a
particular series, provided that no Event of Default has occurred and is
continuing with respect to the Securities, the Company shall have the right, at
any time or from time to time during the term of such series, to defer the
payment of interest on such Securities for such period or periods as may be
specified as contemplated by Section 3.01 (each, an "Extension Period") during
which Extension Periods the Company shall have the right to make partial
payments of interest on any Interest Payment Date. No Extension Period shall
end on a date other than an Interest Payment Date. At the end of any such
Extension Period the Company shall pay all interest then accrued and unpaid on
the Securities (together with Additional Interest thereon, if any, at the rate
specified for the Securities of such
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series to the extent permitted by applicable law), provided, however, that no
Extension Period may extend beyond the Maturity of these Securities. During
any such Extension Period, the Company shall not (i) declare or pay dividends
or distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Company'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 Company
(including Other Debentures) that rank pari passu with or junior in interest to
the Securities of such series or (iii) make any guarantee payments with respect
to any guarantee by the Company of the debt securities of any Subsidiary of the
Company (including Other Guarantees) if such guarantee ranks pari passu with or
junior in interest to the Securities of such series (other than (a) dividends
or distributions in common stock of the Company, (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
applicable North Fork Bancorporation Guarantee, (d) purchases or acquisitions
of shares of the Company's Common Stock in connection with the satisfaction by
the Company of its obligations under any employee benefit plan or other
contractual obligation of the Company (other than a contractual obligation
ranking pari passu with or junior to these Securities, (e) as a result of a
reclassification of the Company's capital stock or the exchange or conversion
of one class or series of the Company's capital stock for another class or
series of the Company's capital stock, or (f) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged). Prior to the termination of any such Extension Period, the Company
may further extend such Extension Period; provided, however, that no Extension
Period shall exceed the period or periods specified in such Securities or
extend beyond the Maturity of such Securities. Upon termination of any
Extension Period and upon the payment of all accrued and unpaid interest and
any Additional Interest then due on any Interest Payment Date, the Company may
elect to begin a new Extension Period, subject to the above requirements. No
interest shall be due and payable during an Extension
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Period, except at the end thereof. The Company shall give the Holders of the
Securities of such series and the Trustee and the Property Trustee notice of
its election to begin any such Extension Period (or an extension thereof) at
least five Business Days prior to the Interest Payment Date or, with respect to
the Securities of a series issued to a North Fork Capital Trust, prior to the
earlier of (i) the date the Distributions on the Trust Securities of such North
Fork Capital Trust would have been payable except for the election to begin or
extend such Extension Period or (ii) the date the Administrative Trustees of
such North Fork Capital Trust are required to give notice to any automated
quotation system or to holders of Trust Securities of the record date or the
date such Distributions are payable, but in any event not less than five
Business Days prior to such record date. There is no limitation on the number
of times that the Company may elect to begin an Extension Period.
SECTION 3.13. Agreed Tax Treatment. Each Security issued
hereunder shall provide that the Company and, by its acceptance of a Security
or a beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Security intend that such Security constitute
indebtedness and agree to treat such Security as indebtedness for all United
States Federal, state and local tax purposes.
SECTION 3.14. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption or other related
material as a convenience to Holders; provided, however, that any such notice
or other related material may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption or other related material and that reliance may
be placed only on the other identification numbers printed on the Securities,
and any such redemption shall not be affected by any defect in or omission of
such numbers.
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ARTICLE IV
Satisfaction and Discharge
SECTION 4.01. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to (i) any surviving
rights of transfer, substitution and exchange of Securities, (ii) rights
hereunder of Holders to receive payments of principal of (and premium, if any)
and interest on the Securities and other rights, duties and obligations of the
Holders as beneficiaries hereof with respect to the amounts, if any, deposited
with the Trustee pursuant to this Article IV and (iii) the rights and
obligations of the Trustee hereunder), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.07 and (ii) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 10.03) have been delivered to the Trustee
for cancelation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancelation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year of the date of
deposit,
and the Company, in the case of Clause (B)(i) or (B)(ii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the currency or currencies in
which the Securities of such series are payable
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sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancelation,
for principal (and premium, if any) and interest (including any
Additional Interest) to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of clause
(1) of this Section, the obligations of the Trustee under Section 4.02 and the
last paragraph of Section 10.03 shall survive.
SECTION 4.02. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 10.03, all money deposited with the
Trustee pursuant to Section 4.01, shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for the payment of which such money or obligations have been
deposited with or received by the Trustee; provided, however, that such moneys
need not be segregated from other funds except to the extent required by law.
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ARTICLE V
Remedies
SECTION 5.01. Events of Default. "Event of Default",
wherever used herein with respect to the Securities of any series, 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):
(1) default in the payment of any interest upon any Security
of that series, including any Additional Interest in respect thereof,
when it becomes due and payable, and continuance of such default for a
period of 30 days (subject to the deferral of any due date in the case
of an Extension Period); or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when due, whether at its
Maturity, upon redemption, by declaration of acceleration or
otherwise; or
(3) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Company in this Indenture
(other than a covenant or warranty a default in the performance of
which or the breach of which is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of
90 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate outstanding principal amount of
the Securities of that series a written notice specifying such default
or breach and requiring it to be remedied; or
(4) the entry or a decree or order by a court having
jurisdiction in the premises adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State
bankruptcy, insolvency, reorganization or
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other similar law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company 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
(5) the institution by the Company 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 other
similar official) of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit for
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 bank rupt, or the taking of corporate action by the
Company in furtherance of any such action; or
(6) in respect of a series issued to a North Fork Capital
Trust, the voluntary or involuntary dissolution, winding-up or
termination of a North Fork Capital Trust, except in connection with
the distribution of the Securities to the holders of Trust Securities
in liquidation of such North Fork Capital Trust, the redemption of all
the Trust Securities of a North Fork Capital Trust, or certain
mergers, consolidations or amalgamations, each as permitted by the
applicable Trust Agreement; or
(7) any other Event of Default with respect to Securities of
that series.
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series
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may declare the principal amount (or, if the Securities of that series are
Discount Securities, such portion of the principal amount as may be specified
in the terms of that series) of all the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), provided, however, that, in the case of the Securities of
a series issued to a North Fork Capital Trust, if, upon an Event of Default,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series fail to declare the principal of all the
Securities of that series to be immediately due and payable, the holders of at
least 25% in aggregate Liquidation Amount of the corresponding series of
Capital Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee. The Holders of a majority in aggregate
principal amount of the Outstanding Securities of these Securities may annul
such declaration and waive the default if the default (other than the
nonpayment of the principal of these Securities which has become due solely by
such acceleration) has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration has
been deposited with the Trustee. Should the Holders of these 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.
Upon any such declaration such principal amount (or specified amount) of and
the accrued interest (including any Additional Interest) on all the Securities
of such series shall become immediately due and payable, provided, however,
that the payment of principal and interest (including any Additional Interest)
on such Securities shall remain subordinated to the extent provided in Article
XIII.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee,
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may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest (including
any Additional Interest) on all Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel.
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of
that series which has become due solely by such acceleration, have
been cured or waived as provided in Section 5.13.
The Holders of a majority in aggregate outstanding principal
amount of the Securities of a series affected thereby may, on behalf of the
Holders of all the Securities of such series, 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 Trustee) or a default in respect of a covenant or
provision which under this Indenture cannot be modified or amended without the
consent of the Holder of each outstanding Security of such series and, in the
case of Securities of a series issued to a North Fork Capital Trust, should the
holders of such Securities fail to annul such declaration and waive such
default, the holders of a majority in aggregate Liquidation Amount of the
related series of Capital Securities shall have such right. The Company is
required to file annually with the Trustee a certificate as to whether or not
the Company is in compliance with all
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the conditions and covenants applicable to it under this Indenture.
No such recession shall affect any subsequent default or
impair any right consequent thereon.
Upon receipt by the Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, with respect to
Securities of a series all or part of which is represented by a Global
Security, a record date shall be established for determining Holders of
Outstanding Securities of such series entitled to join in such notice, which
record date shall be at the close of business on the day the 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, however, that,
unless such declaration 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 5.02.
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any instalment of
interest (including any Additional Interest) on any Security when such
interest becomes due and payable and such default continues for a
period of 30 days, or
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(2) default is made in the payment of the principal of (and
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal, including any sinking fund payment or
analogous obligations (and premium, if any) and interest (including any
Additional Interest); and, in addition thereto, all amounts owing to the
Trustee under Section 6.07 and Section 10.06.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Securities, wherever situated.
If an Event of Default with respect to Securi ties of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein
expressed or by decla-
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ration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal
(and premium, if any) or interest (including any Additional Interest))
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest (including any
Additional Interest) owing and unpaid in respect to the
Securities and to file such other papers or documents as may
be necessary or advisable and to take any and all actions as
are authorized under the Trust Indenture Act in order to have
the claims of the Holders and any predecessor to the Trustee
under Section 6.07 and of the Holders allowed in any such
judicial proceedings; and
(ii) in particular, the Trustee shall be authorized
to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same in
accordance with Section 5.06; and
(b) 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 Trustee for distribution in accordance with Section 5.06, and
in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due
to it and any predecessor Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
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SECTION 5.05. Trustee May Enforce Claim Without Possession
of Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of all the amounts owing the Trustee and
any predecessor Trustee under Section 6.07, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.06. Application of Money Collected. Any money or
property collected or to be applied by the Trustee with respect to a series of
Securities pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money or property on account of principal (or premium, if any) or interest
(including any Additional Interest), upon presentation of the Securities and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: to the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.07;
Second: to the payment of the amounts then due and unpaid
upon such series of Securities for principal (and premium, if any) and
interest (including any Additional Interest), in respect of which or
for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts
due and payable on such series of Securities for principal (and
premium, if any) and interest (including any Additional Interest),
respectively; and
Third: the balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.07. Limitation on Suits. No Holder of any
Securities of any series shall have any right to institute any proceeding,
judicial or otherwise, with
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respect to this Indenture or for the appointment of a receiver, assignee,
trustee, liquidator, sequestrator (or other similar official) or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right which is absolute
and unconditional to receive payment of the principal of (and premium, if any)
and (subject to Sec-
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tion 3.08) interest (including any Additional Interest) on such Security on the
respective Stated Maturities expressed in such Security and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder. In the case of Securities of a series
issued to a North Fork Capital Trust, any holder of the corresponding series of
Capital Securities shall have the right, upon the occurrence of an Event of
Default described in Section 5.01(1) or 5.01(2) hereof, to institute a suit
directly against the Company for enforcement of payment to such Holder of
principal of (and premium, if any) and (subject to Section 3.08) interest
(including any Additional Interest) on the Securities having a principal amount
equal to the aggregate Liquidation Amount of the Capital Securities of the
corresponding series held by such Holder.
Notwithstanding any payments made to a holder of Capital
Securities by the Company in connection with a suit directly against the
Company, the Company shall remain obligated to pay the principal of or interest
on the Securities, and the Company 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 Company to such holder in
any suit directly against the Company.
The holders of the Capital Securities will not be able to
exercise directly any remedies, other than those set forth in this Section
5.08, available to the holders of the Securities unless there shall have been
an Event of Default under the Trust Agreement.
SECTION 5.09. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every case the Company, the Trustee and the Holders
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
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SECTION 5.10. Rights and Remedies Cumulative. Except as
otherwise provided in the last paragraph of Section 3.07, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. Except as
otherwise provided in the last paragraph of Section 3.07, no delay or omission
of the Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders as the case may be.
SECTION 5.12. Control by Holders. The Holders of a majority
in principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to the provisions of Section 6.01, the Trustee
shall have the right to decline to follow such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of
the Trustee, determine that the proceeding so directed would be
unjustly prejudicial to the Holders not
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joining in any such direction or would involve the Trustee in personal
liability.
Upon receipt by the Trustee of any written notice directing
the time, method or place of conducting any such proceeding or exercising any
such trust or power, with respect to Securities of a series all or part of
which is represented by a Global Security, a record date shall be established
for determining Holders of Outstanding Securities of such series entitled to
join in such notice, which record date shall be at the close of business on the
day the 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, however, that, unless the Holders of a majority in principal amount
of the Outstanding Securities of such series shall have joined in such notice
prior to the day which is 90 days after such record date, such notice 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 notice
identical to a 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 5.12.
SECTION 5.13. Waiver of Past Defaults. The Holders of not
less than a majority in principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series waive
any past default hereunder and its consequences with respect to such series
except a default:
(1) in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Security of such
series; or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the
Holder or each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom
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shall be deemed to have been cured, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 5.14. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest (including any Additional
Interest) on any Security on or after the respective Stated Maturities
expressed in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws. The
Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any usury, stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
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ARTICLE VI
The Trustee
SECTION 6.01. Certain Duties and Responsibilities. (a)
Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct except that:
(i) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
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(iii) the 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 Holders pursuant to Section 5.12 relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities
of such series.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if there shall be grounds for believing that repayment of
such funds or indemnity satisfactory to its against such risk or liability is
not assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.02. Notice of Defaults. Within 90 days after
actual knowledge by a Responsible Officer of the Trustee of the occurrence of
any default hereunder with respect to the Securities of any series, the
Trustee shall transmit by mail to all Holders of Securities of such series, as
their names and addresses appear in the Securities Register, notice of such
default hereunder known to a Responsible Officer of the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Security of such series,
the Trustee shall be fully protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of
Securities of such series; and provided, further, however, that, in the case of
any default of the character specified in Section 5.01(3), no such notice to
Holders of Securities of such series shall be given until
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at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities of
such series.
SECTION 6.03. Certain Rights of Trustee. Subject to the
provisions of Section 6.01:
(a) the 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, Security 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) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifical ly prescribed)
shall be entitled to receive and may, in the absence of bad faith on
its part, conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of 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;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs,
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expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the 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, indenture, Security or other paper or document,
but the Trustee in its discretion may make such inquiry or
investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Indenture;
(i) the Trustee shall not be charged with knowledge of any
Event of Default unless either (1) a Responsible Officer of the
Trustee shall have actual knowledge or (2) the Trustee shall have
received notice thereof in accordance with Section 1.05(1) hereof from
the Company or a Holder; and
(j) no permissive power or authority available to the Trustee
shall be construed as a duty.
SECTION 6.04. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or any offering or disclosure materials prepared
in connection therewith. The Trustee
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shall not be accountable for the use or application by the Company of the
Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any Paying
Agent, Securities Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Paying Agent,
Securities Registrar or such other agent.
SECTION 6.06. Money Held in Trust. Money held by the
Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with
the Company.
SECTION 6.07. Compensation and Reimbursement. The Company,
as borrower on the Securities, agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder in such amounts
as the Company and the Trustee shall agree from time to time (which
compensation shall not be limited by any provision of law in regard to
the compensation a trustee of an express trust);
(2) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Indenture
(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
bad faith; and
(3) to indemnify the Trustee, its officers, agents, directors
and employees for, and to hold them harmless against, any loss,
liability or expense (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) incurred without
negligence or bad faith, arising out of or in connection with the
acceptance or administration of this trust or the performance
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of its duties hereunder, 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 obligations of the Company under this Section 6.07 shall
survive the termination of this Indenture or the earlier resignation or removal
of the Trustee.
To secure the Company's payment obligations in this Section,
the Company and the Holders agree that the Trustee shall have a lien prior to
the Securities on all money or property held or collected by the Trustee. Such
lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.01(4) or (5) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Code of 1978, as amended, or any successor
statute.
SECTION 6.08. Disqualification; Conflicting Interests. The
Trustee for the Securities of any series issued hereunder shall be subject to
the provisions of Section 310(b) of the Trust Indenture Act. Nothing herein
shall prevent the Trustee from filing with the Commission the application
referred to in the second-to-last paragraph of Section 301(b) of the Trust
Indenture Act.
SECTION 6.09. Corporate Trustee Required, Eligibility.
There shall at all times be a Trustee hereunder which shall be:
(a) a corporation organized and doing business under the laws
of the United States of America or of any state, territory or the
District of Columbia, authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by Federal,
state, territorial or District of Columbia authority, or
(b) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as
Trustee pursuant to
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a rule, regulation or order of the Commission, authorized under such
laws to exercise corporate trust powers, and subject to supervision or
examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to the supervision or
examination applicable to United States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision of examination by Federal or state authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examination authority,
then, for the purposes of this Section, 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. If at any time the
Trustee 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. Neither the Company nor any Person
directly or indirectly controlling, controlled by or under common control with
the Company shall serve as Trustee for the Securities of any series issued
hereunder.
SECTION 6.10. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of
a Successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the Successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a Successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a Successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in principal
amount of the
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Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.08 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any
such case, (i) the Company, acting pursuant to the authority of a
Board Resolution, may remove the Trustee, or (ii) subject to Section
5.14, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a Successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a Successor Trustee with respect to
the Securities of that or those series. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
Successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the Successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the Successor Trustee with respect to
the Securities of such series and supersede the Successor Trustee
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appointed by the Company. If no Successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may,
subject to Section 5.14, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
Successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a Successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of such series as their names an
addresses appear in the Securities Register. Each notice shall include the
name of the Successor Trustee with respect to the Securities of such series and
the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. (a)
In case of the appointment hereunder of a Successor Trustee with respect to all
Securities, every such Successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
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 all the
rights, powers trusts and duties of the retiring Trustee; but, on the request
of the Company 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
shall duly assign, transfer and deliver to such Successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of the Successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each Successor Trustee with respect to the
Securities of one or more series shall execute and
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deliver an instrument or an indenture supplemental hereto wherein each
Successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to,
and to vest in, each Successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such Successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such instrument
or supplemental indenture shall constitute such Trustee co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and upon the execution and delivery of such instrument
or supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such Successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts, and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
Successor Trustee relates; but, on request of the Company or any Successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
Successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such Successor Trustee relates.
(c) Upon request of any such Successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such Successor Trustee all rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
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(d) No Successor Trustee shall accept its appointment unless
at the time of such acceptance such Successor Trustee shall be qualified and
eligible under this Article. In the event that the Trust Indenture Act applies
to this Indenture at the time that any Successor Trustee is appointed, such
Successor Trustee shall qualify under such Act.
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article (including qualification under the Trustee Indenture Act, if
applicable), without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated, and in case
any Securities shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any predecessor Trustee
or in the name of such Successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent. The
Trustee may appoint an authenticating agent or agents (each, an "Authenticating
Agent") with respect to one or more series of Securities which shall be autho-
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rized to act on behalf of the Trustee to authenticate Securities of such series
issued upon original issue and upon exchange, registration of transfer or
partial redemption thereof, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Where reference is made
in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any state, Territory or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent 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
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of an Authenticating Agent
shall be the successor Authenticating Agent hereunder, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to
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the Company. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee may appoint a successor Authenticating Agent which shall be acceptable
to the Company and shall give notice of such appointment in the manner provided
in Section 1.06 to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provision of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of each series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alterative certificate of authentication in the following form:
This is one of the Securities referred to in the within
mentioned Indenture.
--------------------------------------
Agent Trustee
by
-----------------------------------
As Authenticating Agent
by
-----------------------------------
Authorized Signatory
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SECTION 6.15. Trustee's Rights and Obligations After
Qualification of Indenture. Following the qualification of this Indenture
under the Trust Indenture Act, the Trustee shall have and be subject to all the
duties and responsibilities specified with respect to an indenture trustee
under the Trust Indenture Act. Subject to such provisions, the Trustee is
under no obligation to exercise any of the powers vested in it by this
Indenture at the request of any holder of the Securities, unless offered
indemnity to its satisfaction by such holder against the costs, expenses and
liabilities which might be incurred thereby. The Trustee will not be required
to expend or risk its own funds or otherwise incur personal financial liability
in the performance of its duties if the Trustee reasonably believes that
repayment or adequate indemnity is not reasonably assured to it.
Notwithstanding the foregoing, nothing in this Section 6.15 shall be deemed to
abrogate any of the rights, indemnities or protections otherwise provided to
the Trustee under this Indenture.
ARTICLE VII
Holder's Lists and Reports by Trustee and Company
SECTION 7.01. Company to Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not more than 15 days after May 15 and
November 15, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such May 1
and November 1, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished, excluding from any such list
names and addresses received by the Trustee in its capacity as
Securities Registrar.
SECTION 7.02. Preservation of Information, Communications to
Holders. (a) The Trustee shall pre-
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serve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee
as provided in Section 7.01 and the names and addresses of Holders received by
the Trustee in its capacity as Securities Registrar. The Trustee may destroy
any list furnished to it as provided in Section 7.01 upon receipt of a new list
so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided in
the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.03. Reports by Trustee. (a) The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act, at the
times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated
intervals of not more than 12 months shall be transmitted no later than the
last calendar day in February of each calendar year, commencing with the last
calendar day in February, 1998.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which the Securities are listed and also with the Commission. The Company
will notify the Trustee whenever the Securities are listed on any securities
exchange.
SECTION 7.04. Reports by Company. The Company shall file
with the Trustee and with the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times
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and in the manner provided in the Trust Indenture Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934,
as amended, shall be filed with the Trustee within 15 days after the same is
required to be filed with the Commission. Notwithstanding that the Company may
not be required to remain subject to the reporting requirements of Section 13
or 15(d) of the Securities Exchange Act of 1934, as amended, the Company shall
continue to file with the Commission and provide the Trustee with the annual
reports and the information, documents and other reports which are specified in
Sections 13 and 15(d) of the Securities Exchange Act of 1934, as amended. The
Company also shall comply with the other provisions of Trust Indenture Act
Section 314(a).
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.01. Company May Consolidate, etc., Only on Certain
Terms. The Company 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 Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge with
or into another Person or convey, transfer or lease its properties and
asses substantially as an entirety to any Person, the corporation
formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company substantially as an entirety
shall be a corporation, partnership or trust organized and existing
under the laws of the United States of America or any State or the
District of Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest (including
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any Additional Interest) on all the Securities and the performance of
every covenant and every obligation of this Indenture on the part of
the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time,
or both, would become an Event of Default, shall have occurred and be
continuing;
(3) in the case of the Securities of a series issued to a
North Fork Capital Trust, such consolidation, merger, conveyance,
transfer or lease is permitted under the related Trust Agreement and
North Fork Bancorporation Guarantee and does not give rise to any
breach or violation of the related Trust Agreement or North Fork
Bancorporation Guarantee; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and any such
supplemental indenture complies with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with; and the Trustee, subject to Section 6.01, may
rely upon such Officers' Certificate and Opinion of Counsel as
conclusive evidence that such transaction complies with this Section
8.01.
SECTION 8.02. Successor Corporation Substituted. Upon any
consolidation or merger by the Company with or into any other Person, or any
conveyance, transfer or lease by the Company of its properties and assets
substantially as an entirety to any Person in accordance with Section 8.01, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein; and in the event of any such conveyance, transfer
or lease the Company shall be discharged from all obligations and covenants
under the
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Indenture and the Securities and may be dissolved and liquidated.
Such successor Person may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication
pursuant to such provisions and any Securities which such successor Person
thereafter shall cause to be signed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Securities theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form may be made in the Securities
thereafter to be issued as may be appropriate.
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures without Consent of
Holders. Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory, to the
Trustee, for any of the following:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained;
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(2) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee or to surrender any right or power
herein conferred upon the Company;
(3) to establish the form or terms of Securities of any series
as permitted by Sections 2.01 or 3.01;
(4) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein
conferred upon the Company;
(5) to add any additional Events of Default;
(6) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision;
(7) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsis tent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action
pursuant to this clause (7) shall not materially adversely affect the
interest of the Holders of Securities of any series or, in the case of
the Securities of a series issued to a North Fork Capital Trust and
for so long as any of the corresponding series of Capital Securities
shall remain outstanding, the holders of such Capital Securities;
(8) to evidence and provide for the acceptance of appointment
hereunder by a Successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereun-
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der by more than one Trustee, pursuant to the requirements of Section
6.11(b); or
(9) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act.
SECTION 9.02. Supplemental Indentures with Consent of
Holders. With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) except to the extent permitted by Section 3.12 or as
otherwise specified as contemplated by Section 3.01 with respect to
the extension of the interest payment period of the Securities of any
series, change the Stated Maturity of the principal of, or any
installment of interest (including any Additional Interest) on, any
Security, or reduce the principal amount thereof or the rate of
interest thereon or reduce any premium payable upon the redemption
thereof, or reduce the amount of principal of a Discount Security that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.02, or change the place of
payment where, or the coin or currency in which, any Security or
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the date fixed for
redemption thereof);
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the
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consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver
(of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture;
(3) modify any of the provisions of this Section, Section 5.13
or Section 10.05, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Security affected
thereby; or
(4) modify the provisions in Article XIII of this Indenture
with respect to the subordination of Outstanding Securities of any
series in a manner adverse to the Holders thereof;
provided that, in the case of the Securities of a series issued to a North Fork
Capital Trust, so long as any of the corresponding series of Capital Securities
remains outstanding, no such amendment shall be made that adversely affects the
holders of such Capital Securities, and no termination of this Indenture shall
occur, and no waiver of any Event of Default or compliance with any covenant
under this Indenture shall be effective, without the prior consent of the
holders of at least a majority of the aggregate Liquidation Amount of such
Capital Securities then outstanding unless and until the principal (and
premium, if any) of the Securities of such series and all accrued and, subject
to Section 3.08, unpaid interest (including any Additional Interest) thereon
have been paid in full; and provided further, however, that in the case of the
Securities of a series issued to a North Fork Capital Trust, so long as any of
the corresponding series of Capital Securities remain outstanding, no amendment
shall be made to Section 5.08 of this Indenture without the prior consent of
the holders of each Capital Security then outstanding unless and until the
principal (and premium, if any) of the Securities of such series and all
accrued and (subject to Section 3.08) unpaid interest (including any Additional
interest) thereon have been paid in full.
A supplemental indenture that changes or eliminates any
covenant or other provision of this Indenture
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that has expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In
executing or accepting the additional trusts created by any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in conclusively relying
upon, an Officer's Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture, and that all conditions precedent have been complied with. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise, or which may subject it to liability or be
contrary to applicable law.
SECTION 9.04. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. No
supplemental indenture will be qualified or executed pursuant to the Trust
Indenture Act unless this Indenture is so qualified, or in connection with
Capital Securities which are registered under the Securities Exchange Act of
1934, as amended, upon the effectiveness of a registration statement and the
consummation of an
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exchange offer pursuant to a Registration Rights Agreement as contemplated in
Article XII hereof. Every supplemental indenture so qualified or executed
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such Series.
ARTICLE X
Covenants
SECTION 10.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of securities
that it will duly and punctually pay the principal of (and premium, if any) and
interest on the Securities of that series in accordance with the terms of such
Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. The Company
will maintain in each Place of Payment for any series, an office or agency
where Securities of that series may be presented or surrendered for payment and
an office or agency where Securities may be surrendered for transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company initially appoints
the Trustee, acting through its Corporate Trust Office, as its agent for said
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the Company
shall fail to maintain such office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders,
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notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all of such purposes, and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation and any change in the location of any such office or agency.
SECTION 10.03. Money for Security Payments to be Held in
Trust. If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to 10:00 a.m. New York City time on each due date of the principal
of or interest on any Securities, deposit with a Paying Agent a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal and premium (if any) or interest, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its failure so to
act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with
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the Trustee, subject to the provisions of this Section, that such Paying Agent
will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the
Company (or any other obligor upon the Securities) in the making of
any payment of principal (and premium, if any) or interest;
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent; and
(4) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by the Company or any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall (unless otherwise required by mandatory provision of applicable
escheat or abandoned or unclaimed property law) be paid on Company Request to
the Company, or (if then held by the Company) shall (unless otherwise required
by mandatory provision of applicable escheat or abandoned or unclaimed property
law) be discharged from such trust; and the
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Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, the City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 10.04. Statement as to Compliance. The Company shall
deliver to the Trustee, within 120 days after the end of such calendar year of
the Company ending after the date hereof, an Officers' Certificate executed by
authorized officers at least one of whom shall be the principal executive,
financial or accounting officer of the Company covering the preceding calendar
year, stating whether or not to the best knowledge of the signers thereof the
Company is in default in the performance, observance or fulfillment of or
compliance with any of the terms, provisions, covenants and conditions of this
Indenture, and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge. For the
purpose of this Section 10.04, compliance shall be determined without regard
to any grace period or requirement of notice provided pursuant to the terms of
this Indenture.
SECTION 10.05. Waiver of Certain Covenants. The Company may
omit in any particular instance to comply with any covenant or condition as
specified as contemplated by Section 3.01 with respect to the Securities of any
series, if before or after the time for such compliance the Holders of at least
a majority in principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver
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shall become effective, the obligations of the Company in respect of any such
covenant or condition shall remain in full force and effect.
SECTION 10.06. Payment of the Trust's Costs and Expenses.
Since the North Fork Capital Trusts are being formed solely to facilitate the
investment in the Securities, the Company, as borrower on the Securities,
hereby covenants to pay all debts and obligations (other than with respect to
the payment of principal, interest and premium, if any, on the Trust
Securities) and all costs and expenses of such Trusts (including, but not
limited to, all costs and expenses relating to the organization of such Trusts,
the fees and expenses of the Trustees and all costs and expenses relating to
the operation of such Trusts) and to pay any and all taxes, duties, assessments
or other governmental charges of whatever nature (other than United States
withholding taxes) imposed on such Trusts by the United States, or any other
taxing authority (such payments of amounts in connection with taxes being
herein referred to as "Additional Sums"), so that the net amounts received and
retained by such Trusts and their respective Property Trustees after paying
such expenses or Additional Sums will be equal to the amounts such Trusts and
Property Trustees would have received had no such costs, expenses or taxes,
duties, assessments or other governmental charges been incurred by or imposed
on such Trusts. The foregoing obligations of the Company are for the benefit
of, and shall be enforceable by, any person to whom such debts, obligations,
costs, expenses and taxes are owed (a "Creditor") whether or not such Creditor
has received notice thereof. Any such Creditor may enforce such obligations
of the Company hereunder directly against the Company, and the Company hereby
irrevocably waives any right or remedy to require that any such Creditor take
any action against any Trust or any other person before proceeding against the
Company. The Company also agrees hereby to execute such additional agreements
as may be necessary or desirable to give full effect to the foregoing.
SECTION 10.07. Additional Covenants. The Company covenants
and agrees with each Holder of 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
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liquidation payment with respect to, any shares of the Company'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 Company (including Other Debentures) that rank pari
passu with or junior in interest to the Securities of such series or (iii) make
any guarantee payments with respect to any guarantee by the Company of debt
securities of any subsidiary of the Company (including Other Guarantees) if
such guarantee ranks pari passu with or junior in interest to the Securities
(other than (a) dividends or distributions in Common Stock of the Company, (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 North Fork Bancorporation Guarantee, (d) purchases or
acquisitions of shares of the Company's Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit plan
or other contractual obligation of the Company (other than a contractual
obligation ranking pari passu with or junior in interest to these Securities),
(e) as a result of a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock
for another class or series of the Company's capital stock, or (f) the purchase
of fractional interests in shares of the Company's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged), if at such time (i) there shall have occurred
an Event of Default, (ii) the Company shall be in default with respect to its
payment of any obligations under the related North Fork Bancorporation
Guarantee or (iii) the Company shall have given notice of its election to begin
an Extension Period as provided herein and shall not have rescinded such
notice, or such Extension Period, or any extension thereof, shall be
continuing.
The Company also covenants with each Holder of 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 Company hereunder may succeed to
the Company's ownership
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of such Common Securities, (ii) not to voluntarily terminate, windup or
liquidate such North Fork Capital Trust, except (a) in connection with a
distribution of the 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
Trust Agreement and (iii) to use its reasonable efforts, consistent with the
terms and provisions of such Trust Agreement, 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.
SECTION 10.08. Information Returns. On or before December
15 of each year during which any Securities are outstanding, the Company shall
furnish to each Paying Agent such information as may be reasonably requested by
each Paying Agent in order that such Paying Agent may prepare the information
which it is required to report for such year on Internal Revenue Service Forms
1096 and 1099. Such information shall include the amount of original issue
discount, if any, includible in income for each $1,000 of principal amount at
Stated Maturity of outstanding Securities during such year.
ARTICLE XI
Redemption or Prepayment of Securities
SECTION 11.01. Applicability of This Article. Redemption of
Securities (whether by operation of a sinking fund or otherwise) as permitted
or required by any form of Security issued pursuant to this Indenture shall be
made in accordance with such form of Security and this Article; provided,
however, that if any provision of any such form of Security shall conflict with
any provision of this Article, the provision of such form of Security shall
govern. Except as otherwise set forth in the form of Security for such series,
each Security shall be subject to partial redemption only in the amount of
$1,000 or, in the case of the Securities of a series issued to a North Fork
Capital Trust, $1,000, or integral multiples thereof.
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SECTION 11.02. Election To Redeem; Notice to Trustee. The
election of the Company to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of
the Company of any Securities of any particular series and having the same
terms, the Company shall, not less than 45 nor more than 60 days prior to the
date fixed for redemption (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee and the Property Trustee of such date and of the
principal amount of Securities of that series to be redeemed. In the case of
any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate and an Opinion of Counsel evidencing
compliance with such restriction. Any such notice given to the Trustee
hereunder shall include the information required by Section 11.04 hereof.
SECTION 11.03. Selection of Securities to be Redeemed. If
less than all the Securities of any series are to be redeemed (unless all the
Securities of such series and of a specified tenor are to be redeemed or unless
such redemption affects only a single Security all as designated to the Trustee
by the Company), the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of a portion of the principal amount
of any Security shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security. If less than all
the Securities of such series and of a specified tenor are to be redeemed
(unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
and specified tenor not previously called for redemption in accordance with the
preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for partial redemption and the principal amount thereof
to be redeemed. For all purposes of this Indenture, unless the context
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otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed. If the Company shall so direct, Securities registered in
the name of the Company, any Affiliate or any Subsidiary thereof shall not be
included in the Securities selected for redemption.
SECTION 11.04. Notice of Redemption. Notice of redemption
shall be given by first-class mail, postage prepaid, mailed not later than the
thirtieth day, and not earlier than the sixtieth day, prior to the date fixed
for redemption, to each Holder of Securities to be redeemed, at the address of
such Holder as it appears in the Securities Register.
With respect to Securities of each series to be redeemed, each
notice of redemption shall state:
(a) the date fixed for redemption for Securities of such
series;
(b) the redemption price at which Securities of such series
are to be redeemed;
(c) if less than all Outstanding Securities of such particular
series and having the same terms are to be redeemed, the
identification (and, in the case of partial redemption, the respective
principal amounts) of the particular Securities to be redeemed;
(d) that on the date fixed for redemption, the redemption
price at which such Securities are to be redeemed will become due and
payable upon each such Security or portion thereof, and that interest
thereon, if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be
surrendered for payment of the redemption price at which such
Securities are to be redeemed;
(f) that the redemption is for a sinking fund, if such is the
case; and
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(g) such other provisions as may be required in respect of the
terms of a particular series of Securities.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and shall
not be irrevocable. The notice if mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or
any defect in the notice to the Holder of any Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security.
SECTION 11.05. Deposit of Redemption Price. Prior to 10:00
a.m. New York City time on the redemption date specified in the notice of
redemption given as provided in Section 11.04, the Company will deposit with
the Trustee or with one or more paying agents an amount of money sufficient to
redeem on the redemption date all the Securities so called for redemption at
the applicable redemption price.
SECTION 11.06. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.04, the
Securities or portion of Securities with respect to which such notice has been
given shall become due and payable on the date and at the place or places
stated in such notice at the applicable redemption price. On presentation and
surrender of such Securities at a place of payment in said notice specified,
the said securities or the specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price.
Upon presentation of any Security redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Security or Securities of
that same series, of authorized denominations, in aggregate principal amount
equal to the unredeemed portion of the Security so presented and having the
same Original Issue Date, Stated Maturity and terms. If the
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Global Security is so surrendered, such new Security will (subject to Section
3.06) also be a new Global Security.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal of and premium, if any, on
such Security shall, until paid, bear interest from the Redemption Date at the
rate prescribed therefor in the Security.
SECTION 11.07. Company's Right of Redemption. Unless
otherwise specified as contemplated by Section 3.01 with respect to the
Securities of a particular series and notwithstanding any additional redemption
rights that may be so specified, the Company may, at its option, redeem the
Securities of any series after their date of issuance in whole at any time or
in part from time to time, subject to the provisions of this clause (a) and the
other provisions of this Article XI. Unless otherwise specified as
contemplated by Section 3.01 with respect to the Securities of a particular
series, the redemption price for any Security so redeemed pursuant to this
clause (a) shall be equal to 100% of the principal amount of such Securities
plus any accrued and unpaid interest, including any Additional Interest, to the
date fixed for redemption. The Company shall not redeem the Securities in part
unless all accrued and unpaid interest (including any Additional Interest) has
been paid in full on all Securities Outstanding for all interest periods
terminating on or prior to the date fixed for redemption.
ARTICLE XII
Exchange and Registration Rights
SECTION 12.01. Exchange. (a) If specified as contemplated
by Section 3.01 for Securities for any series, the Company and a North Fork
Capital Trust holding such Securities shall enter into a registration rights
agreement (a "Registration Rights Agreement") for the benefit of the holders of
any Capital Securities of such North Fork Capital Trust which are not
registered under the Securities Act providing that such North Fork Capital
Trust use its best efforts to exchange such Capital Securities for registered
securities, by means of an exchange offer registration statement (an "Exchange
Offer Registration Statement"), issued by the Company and
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such North Fork Capital Trust with terms identical in all material respects to
the terms of the Capital Securities (the "Exchange Capital Securities").
(b) In the event that North Fork Capital Trust is successful
in providing Exchange Capital Securities to the holders of Capital Securities
as described in clause (a) of this Section 12.01, the Company shall
contemporaneously exchange the Securities held by such North Fork Capital Trust
for new securities issued by the Company (the "Exchange Securities") with terms
identical in all material respects to the terms of the Securities to such
Capital Securities, and shall further contemporaneously exchange the North Fork
Bancorporation Guarantee then held by the Guarantee Trustee under the Guarantee
Agreement for a new guarantee of the Company (the "Exchange Guarantee") with
terms identical in all material respects to the terms of the North Fork
Bancorporation Guarantee.
SECTION 12.02. Registration. If specified as contemplated
by Section 3.01 for Securities of any series, the Administrative Trustee of any
North Fork Capital Trust on behalf of the Company and such North Fork Capital
Trust shall (a) file a registration statement under the Securities Act covering
resales of the Capital Securities (the "Registration Statement"), (b) use their
best efforts to cause such Registration Statement to be declared effective
under the Securities Act, and (c) use their best efforts to cause such
Registration Statement to remain effective for as long as specified as
contemplated by Section 3.01 for Securities of such series. The Administrative
Trustees shall (x) promptly deliver to the holders and to the Delaware Trustee
and the Property Trustee written notice of their intent to file such
Registration Statement. All costs incurred in connection with the filing and
maintenance of such Registration Statement shall be borne by the Company.
SECTION 12.03. Liquidated Damages. If specified as
contemplated by Section 3.01 for Securities of any series, the Company may
enter into an agreement providing that, in the event that (i) an Exchange Offer
Registration Statement or a Registration Statement is not filed, (ii) such
Exchange Offer Registration Statement or Registration Statement does not become
effective, or (iii) such Exchange Offer Registration Statement or Registration
Statement does not remain effective within
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the time period or for as long as contemplated by the applicable registration
rights agreement, the Company shall pay to the relevant North Fork Capital
Trust, and such North Fork Capital Trust shall pay to the holders of the
Capital Securities, an amount of liquidated damages, which may be either fixed
or based on the duration and/or principal amount of the Securities or the
Liquidation Amount of the Capital Securities affected thereby.
SECTION 12.04. Compliance with Law. Any registration rights
agreement entered into hereunder may provide that any Holder of Capital
Securities who is considered to be an affiliate of the Company or the North
Fork Capital Trust or any underwriter in connection with the issuance and sale
of Capital Securities be barred from participation in the Exchange Offer
Registration statement or other Registration Statement, in accordance with
applicable law or regulation.
ARTICLE XIII
Sinking Funds
SECTION 13.01. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of any series except as otherwise specified as contemplated by
Section 3.01 for such Securities.
The minimum amount of any sinking fund payment provided for by
the terms of any Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any sinking fund payment in excess of
such minimum amount which is permitted to be made by the terms of such
Securities of any series is herein referred to as an "optional sinking fund
payment". If provided for by the terms of any Securities of any series, the
case amount of any sinking fund payment may be subject to reduction as provided
in Section 13.02. Each sinking fund payment shall be applied to the redemption
(or purchase by tender or otherwise) of Securities of any series as provided
for by the terms of such Securities.
SECTION 13.02. Satisfaction of Sinking Fund Payments with
Securities. In lieu of making all or any part of a mandatory sinking fund
payment with respect to
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any Securities of a series in cash, the Company may at its option, at any time
no more than 16 months and no less than 45 days prior to the date on which such
sinking fund payment is due, deliver to the Trustee Securities of such series
(together with the unmatured Coupons, if any, appertaining thereto) theretofore
purchased or otherwise acquired by the Company, except Securities of such
series that have been redeemed through the application of mandatory or optional
sinking fund payments pursuant to the terms of the Securities of such series,
accompanied by a Company Order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally
issued by the Company by way of bona fide sale or other negotiation for value;
provided that the Securities to be so credited have not been previously so
credited. The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the redemption price for such Securities, as
specified in the Securities so to be redeemed, for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be
reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any series of
securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section
3.01) and the portion thereof, if any, which is to be satisfied by delivering
and crediting Securities pursuant to Section 13.02 and will also deliver to the
Trustee any Securities to be so delivered. Such Certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the
succeeding sinking fund payment date. In the case of the failure of the Company
to deliver such Certificate (or, as required by this Indenture, the Securities
and coupons, if any, specified in such Certificate) by the due date therefor,
the sinking fund payment due on the succeeding sinking fund payment date for
such series shall be paid entirely in cash and shall be sufficient to redeem
the principal amount of the Securities of
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such series subject to a mandatory sinking fund payment without the right to
deliver or credit securities as provided in Section 13.02 and without the right
to make the optional sinking fund payment with respect to such series at such
time.
Any sinking fund payment or payments (mandatory or optional)
made in cash plus any unused balance of any preceding sinking fund payments
made with respect to the Securities of any particular series shall be applied
by the Trustee (or by the Company if the Company is acting as its own Paying
Agent) on the sinking fund payment date on which such payment is made (or, if
such payment is made before a sinking fund payment date, on the sinking fund
payment date immediately following the date of such payment) to the redemption
of Securities of such series at the redemption price specified in such
Securities with respect to the sinking fund. Any sinking fund moneys not so
applied or allocated by the Trustee (or by the Company if the Company is acting
as its own Paying Agent, segregated and held in trust as provided in Section
10.03) for such series and together with such payment (or such amount so
segregated) shall be applied in accordance with the provisions of this Section
13.03. Any and all sinking fund moneys with respect to the Securities of any
particular series held by the Trustee (or if the Company is acting as its own
Paying Agent, segregated and held in trust as provided in Section 10.03) on the
last sinking fund payment date with respect to Securities of such series and
not held for the payment or redemption of particular Securities of such series
shall be applied by the Trustee (or by the Company if the Company is acting as
its own Paying Agent), together with other moneys, if necessary, to be
deposited (or segregated) sufficient for the purpose, to the payment of the
principal of the Securities of such series at Maturity. The Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 11.03 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner
provided in Section 11.04. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in the manner stated in
Section 11.06. On or before each sinking fund payment date, the Company shall
pay to the Trustee (or, if the Company is acting as its own Paying Agent, the
Company shall segregate and hold in trust as provided in Sec-
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tion 10.03) in cash a sum in the currency in which Securities of such series
are payable (except as provided pursuant to Section 3.01) equal to the
principal, premium, if any, and any interest accrued to the redemption date for
Securities or portions thereof to be redeemed on such sinking fund payment date
pursuant to this Section 13.03.
Neither the Trustee nor the Company shall redeem any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking fund for
such series during the continuance of a default in payment of interest, if any,
on any Securities of such series or of any Event of Default (other than an
Event of Default occurring as a consequence of this paragraph) with respect to
the Securities of such series, except that if the notice of redemption shall
have been provided in accordance with the provisions hereof, the Trustee (or
the Company if the Company is then acting as its own Paying Agent) shall redeem
such Securities if cash sufficient for that purpose shall be deposited with the
Trustee (or segregated by the Company) for that purpose in accordance with the
terms of this Article XII. Except as aforesaid, any moneys in the sinking fund
for such series at the time when any such default or Event of Default shall
occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Securities and coupons, if any, of such series; provided,
however, that in case such default or Event of Default shall have been cured or
waived herein, such moneys shall thereafter be applied on the next sinking
fund payment date for the Securities of such series on which such moneys may be
applied pursuant to the provisions of this Section 13.03.
ARTICLE XIV
Subordination of Securities
SECTION 14.01. Securities Subordinate to Senior Debt. The
Company covenants and agrees, and each Holder of a Security, by its acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article, the payment
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<PAGE> 117
of the principal of (and premium, if any) and interest (including any
Additional Interest) on each and all of the Securities are hereby expressly
made subordinate and junior in right of payment to the prior payment in full of
all amounts then due and payable in respect of all Senior Debt.
SECTION 14.02. Payment Over of Proceeds Upon Dissolution,
etc. In the event of (a) any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, its creditors or its property, (b)
any proceeding for the liquidation, dissolution, or other winding up of the
Company, voluntary or involuntary, whether or not involving insolvency or
bankruptcy proceedings, (c) any assignment by the Company for the benefit of
creditors or (d) any other marshaling of the assets of the Company (each such
event, if any, herein sometimes referred to as a "Proceeding"), then the
holders of Senior Debt shall be entitled to receive payment in full of
principal of (and premium, if any) and interest, if any, on such Senior Debt,
or provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, before the
Holders of the Securities are entitled to receive or retain any payment or
distribution of any kind or character, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Debt of the Company (including any series of
the Securities) subordinated to the payment of the Securities, such payment or
distribution being hereinafter referred to as a "Junior Subordinated Payment"),
on account of principal of (or premium, if any) or interest (including any
Additional Interest) on the Securities or on account of the purchase or other
acquisition of Securities by the Company or any Subsidiary and to that end the
holders of Senior Debt shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind or character, whether
in cash, property or securities, including any Junior Subordinated Payment,
which may be payable or deliverable in respect of the Securities in any such
Proceeding; provided, however, that holders of Senior Debt shall not be
entitled to receive payment of any such amounts to the extent that such holders
would be required by the subordination provisions of such Senior Debt to pay
such amounts over
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<PAGE> 118
to the obligees on trade accounts payable or other liabilities arising in the
ordinary course of business.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any Junior Subordinated
Payment, before all Senior Debt is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, and if such fact shall, at or prior to the time of such
payment or distribution, have been made known to a Responsible Officer of the
Trustee or, as the case may be, such Holder, then and in such event such
payment or distribution shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the Company
for application to the payment of all Senior Debt remaining unpaid, to the
extent necessary to pay all Senior Debt in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Debt.
110
<PAGE> 119
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan or reorganization or readjustment which securities are subordinated
in right of payment to all then outstanding Senior Debt to substantially the
same extent as the Securities are so subordinated as provided in this Article.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
sale of all or substantially all of its properties and assets as an entirety to
another Person or the liquidation or dissolution of the Company following the
sale of all or substantially all of its properties and assets as an entirety to
another Person upon the terms and conditions set forth in Article VIII shall
not be deemed a Proceeding for the purposes of this Section if the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by sale such properties and assets as an entirety, as the case
may be, shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Article VIII.
111
<PAGE> 120
SECTION 14.03. Prior Payment to Senior Debt Upon
Acceleration of Securities. In the event that any Securities are declared due
and payable before their Stated Maturity, then and in such event the holders of
the Senior Debt outstanding at the time such Securities so become due and
payable shall first be entitled to receive payment in full of all amounts due
on or in respect of such Senior Debt (including any amounts due upon
acceleration), or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Debt, before the Holders of the Securities will be entitled to receive or
retain any payment or distribution of any kind or character, whether in cash,
property or securities (including any Junior Subordinated Payment) by the
Company on account of the principal of (or premium, if any) or interest
(including any Additional Interest) on the Securities or on account of the
purchase or other acquisition of Securities by the Company or any Subsidiary;
provided, however, that nothing in this Section shall prevent the satisfaction
of any sinking fund payment in accordance with this Indenture or as otherwise
specified as contemplated by Section 3.01 for the Securities of any series by
delivering and crediting pursuant to Section 13.02 or as otherwise specified as
contemplated by Section 3.01 for the Securities of any series Securities which
have been acquired (upon redemption or otherwise) prior to such declaration of
acceleration; provided further, however, that holders of Senior Debt shall not
be entitled to receive payment of any such amounts to the extent that such
holders would be required by the subordination provisions of such Senior Debt
to pay such amounts over to the obligees on trade accounts payable or other
liabilities arising in the ordinary course of business.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provisions of this Section, and if such fact shall, at or
prior to the time of such payment, have been made known to a Responsible
Officer of Trustee or, as the case may be, such Holder, then and in such event
such payment shall be paid over and delivered forthwith to the Company.
112
<PAGE> 121
The provisions of this Section shall not apply to any payment
with respect to which Section 14.02 would be applicable.
SECTION 14.04. No Payment When Senior Debt in Default. (a)
In the event and during the continuation of any default by the Company in the
payment of principal of (or premium, if any) or interest, if any, on any Senior
Debt, or in the event that any event of default with respect to any Senior Debt
shall have occurred and be continuing and shall have resulted in such Senior
Debt becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable, unless and until such event of
default shall have been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or (b) in the event any
judicial proceeding shall be pending with respect to any such default in
payment or such event or default, then no direct or indirect payment or
distribution of any kind or character, whether in cash, property or securities
(including any Junior Subordinated Payment) shall be made or agreed to be made
by the Company on account of principal of (or premium, if any) or interest
(including any Additional Interest), if any, on the Securities or on account of
any redemption, repayment, retirement, purchase or other acquisition of any
Securities by the Company or any Subsidiary; provided, however, that nothing in
this Section shall prevent the satisfaction of any sinking fund payment in
accordance with this Indenture or as otherwise specified as contemplated by
Section 3.01 for the Securities of any series by delivering and crediting
pursuant to Section 13.02 or as otherwise specified as contemplated by Section
3.01 for the Securities of any series Securities which have been acquired (upon
redemption or otherwise) prior to such default in payment or event of default.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provisions of this Section, and if such fact shall, at or
prior to the time of such payment, have been made known to a Responsible
Officer of the Trustee or, as the case may be, such Holder, then and in such
event such payment shall be paid over and delivered forthwith to the Company.
113
<PAGE> 122
The provisions of this Section shall not apply to any payment
with respect to which Section 14.02 would be applicable.
SECTION 14.05. Payment Permitted If No Default. Nothing
contained in this Article or elsewhere in this Indenture or in any of the
Securities shall prevent (a) the Company, at any time except during the
pendency of any Proceeding referred to in Section 14.02 or under the conditions
described in Sections 14.03 and 14.04, from making payments at any time of
principal of (and premium, if any) or interest (including Additional Interest)
on the Securities, or (b) the application by the Trustee of any money deposited
with it hereunder to the payment of or on account of the principal of (and
premium, if any) or interest (including any Additional Interest) on the
Securities or the retention of such payment by the Holders, if, at the time of
such payment by the Company or application by the Trustee, as the case may be,
it did not have knowledge that such payment or application, as the case may be,
would have been prohibited by the provisions of this Article.
SECTION 14.06. Subrogation to Rights of Holders of Senior
Debt. Subject to the payment of all Senior Debt to the extent required under
Sections 14.02 and 14.03 of this Indenture, or the provision for such payment
in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, the Holders of the Securities shall be subrogated to
the extent of the payments or distributions made to the holders of such Senior
Debt pursuant to the provisions of this Article (equally and ratably with the
holders of all indebtedness of the Company which by its express terms is
subordinated to Senior Debt of the Company to substantially the same extent as
the Securities are subordinated to the Senior Debt and is entitled to like
rights of subrogation by reason of any payments or distributions made to
holders of such Senior Debt) to the rights of the holders of such Senior Debt
to receive payments and distributions of cash, property and securities
applicable to the Senior Debt until the principal of (and premium, if any) and
interest on the Securities shall be paid in full. For purposes of such
subrogation or assignment, no payments or distributions to the holders of the
Senior Debt of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for
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<PAGE> 123
the provisions of this Article, and no payments over pursuant to the provisions
of this Article to the holders of Senior Debt by Holders of the Securities or
the Trustee, shall, as among the Company, its creditors other than holders of
Senior Debt, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Debt.
SECTION 14.07. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall (a) impair, as between the Company and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest
(including any Additional Interest) on the Securities as and when the same
shall become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Securities and
creditors of the Company other than their rights in relation to the holders of
Senior Debt; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture including, without limitation, filing and voting claims in
any Proceeding, subject to the rights, if any, under this Article of the
holders of Senior Debt to receive cash, property and securities otherwise
Payable or deliverable to the Trustee or such Holder.
SECTION 14.08. Trustee to Effectuate Subordination. Each
Holder of a Security by his or her acceptance thereof authorizes and directs
the Trustee on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
SECTION 14.09. No Waiver of Subordination Provisions. No
right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
115
<PAGE> 124
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or be
otherwise charged with.
SECTION 14.10. Notice to Trustee. The Company shall give
prompt written notice to the Trustee of any fact known to the Company which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior
Debt or from any trustee, agent or representative therefor (whether or not the
facts contained in such notice are true); provided, however, that if the
Trustee shall not have received the notice provided for in this Section at
least two Business Days prior to the date upon which by the terms hereof any
monies may become payable for any purpose (including, without limitation, the
payment of the principal of (and premium, if any) or interest (including any
Additional Interest) on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies and to apply the same to the purpose for which they were
received and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date.
SECTION 14.11. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Article
VI, and the Holders of the Securities shall be entitled to conclusively rely
upon any order or decree entered by any court of competent jurisdiction in
which such Proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities,
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<PAGE> 125
for the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of the Senior Debt and other indebtedness
of the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article.
SECTION 14.12. Trustee Not Fiduciary for Holders of Senior
Debt. The Trustee, in its capacity as trustee under this Indenture, shall not
be deemed to owe any fiduciary duty to the holders of Senior Debt and shall not
be liable to any such holders if it shall in good faith mistakenly pay over or
distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article or otherwise.
SECTION 14.13. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Debt which may at any time be held by it, to the same extent as any
other holder of Senior Debt, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.
SECTION 14.14. Article Applicable to Paying Agents. In case
at any time any Paying Agent other than the Trustee shall have been appointed
by the Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee.
SECTION 14.15. Certain Conversions or Exchanges Deemed
Payment. For purposes of this Article only, (a) the issuance and delivery of
junior securities upon conversion or exchange of Securities shall not be deemed
to constitute a payment or distribution on account of the principal of (or
premium, if any) or interest (including any Additional Interest) on Securities
or on account of the purchase or other acquisition of Securities, and (b) the
payment, issuance or delivery of cash, property
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<PAGE> 126
or securities (other than junior securities) upon conversion or exchange of a
Security shall be deemed to constitute payment on account of the principal of
such Security. For the purposes of this Section, the term "junior securities"
means (i) shares of any stock of any class of the Company and (ii) securities
of the Company which are subordinated in right of payment to all Senior Debt
which may be outstanding at the time of issuance or delivery of such securities
to substantially the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article.
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<PAGE> 127
This instrument may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first written above.
NORTH FORK BANCORPORATION,
INC.,
by
------------------------------------
Name:
Title:
[Seal]
BANKERS TRUST COMPANY, as
Trustee,
by
------------------------------------
Name:
Title:
[Seal]
<PAGE> 1
EXHIBIT 4.2
NORTH FORK BANCORPORATION, INC.
8.70% Exchange Junior Subordinated Debt Securities
due December 15, 2026
No. R-1
NORTH FORK BANCORPORATION, INC., a corporation organized and
existing under the laws of Delaware (hereinafter called the "Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ,
or its registered assigns, the principal sum of $ Dollars) on
December 15, 2026. The Company further promises to pay interest on said
principal sum from December 31, 1996, or from the most recent interest payment
date (each such date, an "Interest Payment Date") on which interest has been
paid or duly provided for, semiannually, subject to deferral as set forth
herein, in arrears on June 15 and December 15 of each year, commencing June 15,
1997, at the rate of 8.70% per annum, until the principal hereof shall have
become due and payable, plus Additional Interest, if any, until the principal
hereof is paid or duly provided for or made available for payment and on any
overdue principal and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment
of interest at the rate of 8.70% per annum, compounded semi-annually as
Additional Interest. The amount of interest payable for any period shall be
computed on the basis of twelve 30-day months and a 360-day year. The amount
of interest payable 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. In the
event that any date on which interest is payable on this Security is not a
Business Day, then a payment of the interest payable on such date will be made
on the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay), with the same force and effect as
if made on the date the payment was originally payable. A "Business Day" shall
mean any day other than (i) a Saturday or Sunday, (ii) a day on which banking
institutions in The City of New York are authorized or required by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office
<PAGE> 2
of the Trustee or the Corporate Trust Office of the Property Trustee under the
Trust Agreement hereinafter referred to for North Fork Capital Trust I is
closed for business. The interest installment so payable, and punctually paid
or duly provided for, on any Interest Payment Date, will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities, as defined in the Indenture) is registered at the close
of business on the Regular Record Date for such interest installment, which
shall be the first day of the month in which an Interest Payment Date occurs.
Any such interest installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
So long as no Event of Default has occurred and is continuing,
the Company shall have the right at any time during the term of this Security,
from time to time, to defer payment of interest on such Security for up to 10
consecutive semi-annual interest payment periods with respect to each deferral
period (each an "Extension Period"), during which Extension Periods the Company
shall have the right to make partial payments of interest on any Interest
Payment Date, and at the end of which the Company shall pay all interest then
accrued and unpaid (together with Additional Interest thereon to the extent
permitted by applicable law); provided, however, that no Extension Period may
extend beyond the Maturity of this Security. During any such Extension Period,
the Company will not, (i) declare or pay any dividends or distributions on or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
the Company's capital stock (which includes common and preferred stock) or
(ii) make any payment of principal of, interest or premium, if any, on or
repay, repurchase or redeem any debt
<PAGE> 3
securities of the Company including Other Debentures that ranks pari passu with
or junior in interest to this Security or (iii) make any guarantee payments
with respect to any guarantee by the Company of the debt securities of any
Subsidiary of the Company (including Other Guarantees) if such guarantee ranks
pari passu with or junior in interest to this Security (other than (a)
dividends or distributions in Common Stock of the Company, (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 North Fork Bancorporation Guarantee, (d) purchases or acquisitions of
shares of the Company's Common Stock in connection with the satisfaction by the
Company of its obligations under any employee benefit plan or other contractual
obligation of the Company (other than a contractual obligation ranking pari
passu with or junior to these Securities), (e) as a result of a
reclassification of the Company's capital stock or the exchange or conversion
of one class or series of the Company's capital stock for another class or
series of the Company's capital stock, or (f) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged). Prior to the termination of any such Extension Period, the Company
may further extend such Extension Period, provided, however, that such
extension does not cause such Extension Period to exceed 10 consecutive
semi-annual interest payment periods or extend beyond the Maturity of this
Security. Upon the termination of any such Extension Period and upon the
payment of all accrued and unpaid interest and any Additional Interest then
due, the Company may elect to begin a new Extension Period, subject to the
above requirements. No interest shall be due and payable during an Extension
Period except at the end thereof. The Company shall give the Holder of this
Security and the Trustee notice of its election to begin any Extension Period
at least five Business Days prior to the Interest Payment Date, or with respect
to the Securities issued to a North Fork Capital Trust, prior to the earlier of
(i) the date the Distributions on the Capital Securities would have been
payable except for the election to begin or extend such Extension Period or
(ii) the date the Administrative Trustees are required to give notice to any
automated
<PAGE> 4
quotation system or to holders of such Capital Securities of the record date or
the date such Distributions are payable, but in any event not less than five
Business Days prior to such record date. There is no limitation on the number
of times the Company may elect to begin an Extension Period.
Payment of the principal of (and premium, if any) and interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in the United States, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payment of any interest may be made (except Securities in Global form) (i) by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Securities Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be designated by the
Person entitled thereto as specified in the Securities Register.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Debt, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
actions as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, waives all notice of
the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Debt, whether now outstanding or hereinafter
incurred, and waives reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
<PAGE> 5
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated: , NORTH FORK BANCORPORATION,
----------- ---- INC.
[Seal]
By:
-------------------------
Chairman, President and
Chief Executive Officer
Attest:
- ---------------------
Corporate Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE SECURITIES REFERRED TO IN THE WITHIN-MENTIONED INDENTURE.
BANKERS TRUST COMPANY, AS TRUSTEE
BY
AUTHORIZED SIGNATORY
<PAGE> 6
Reverse of Security
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under a Junior Subordinated Indenture, dated as of December 31,
1996, as supplemented by an Officers' Certificate dated as of _________, ____
(herein called the "Indenture"), between the Company and Bankers Trust Company,
as Trustee (herein called the "Trustee" which term includes any successor
trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Trustee,
the Company and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof, limited in aggregate principal
amount to $_____.
All terms used in this Security that are defined in the
Indenture and in the Amended and Restated Declaration of Trust of North Fork
Capital Trust I, dated as of December 31, 1996, as amended (the "Amended and
Restated Declaration of Trust"), among North Fork Bancorporation, Inc., as
Depositor, and the Trustees named therein, shall have the meanings assigned to
them in the Indenture or, to the extent not defined in the Indenture, the
Amended and Restated Declaration of Trust, as the case may be.
On or after December 15, 2006, the Company may at any time, at
its option, subject to the terms and conditions of Article XI of the Indenture
and subject to the Company having received prior approval of the Federal
Reserve if then required under applicable capital guidelines of the Federal
Reserve, redeem this Security in whole or in part at any time or from time to
time prior to maturity, at a redemption price (the "Optional Prepayment Price")
equal to the following prices, expressed in percentages of the principal amount
of the Securities together with accrued but unpaid interest to but exclud-
<PAGE> 7
ing the date fixed for redemption. If redeemed during the 12-month period
beginning December 15:
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
---- ----------
<S> <C>
2006................................ 104.170%
2007................................ 103.753
2008................................ 103.336
2009................................ 102.919
2010................................ 102.502
2011................................ 102.085
2012................................ 101.668
2013................................ 101.251
2014................................ 100.834
2015................................ 100.417
</TABLE>
and at 100% on or after December 15, 2016.
If a Tax Event or a Regulatory Capital Event (each a "Special
Event") shall occur and be continuing, the Company may, at its option and
subject to receipt of prior approval of the Federal Reserve if then required
under applicable capital guidelines or policies of the Federal Reserve and
subject to the provisions of Article XI of the Indenture, prepay the Securities
prior to December 15, 2006 and within 90 days after the occurrence of such
Special Event, in whole (but not in part), at a prepayment price (the "Special
Event Prepayment Price") equal to the greater of (i) 100% of the principal
amount of such Securities and (ii) the sum, as determined by a Quotation Agent,
of the present values of the principal amount and premium payable as part of
the Optional Prepayment Price with respect to an optional redemption of such
Securities on December 15, 2006, together with scheduled payments of interest
accruing from the prepayment date to December 15, 2006 (the "Remaining Life"),
in each case discounted to the prepayment date on a semi-annual basis (assuming
a 360-day year consisting of 30-day months) at the Adjusted Treasury Rate,
plus, in each case, accrued interest thereon to the date of prepayment. In the
case of redemption on or after December 15, 2006 following a Special Event, the
Special Event Prepayment Price shall equal the Optional Prepayment Price then
applicable to a redemption as described above.
In the event of redemption of this Security in part only, a
new Security or Securities of this series
<PAGE> 8
for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of this Security may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the Company and the Trustee at any time to enter into a supplemental
indenture or indentures for the purpose of modifying in any manner the rights
and obligations of the Company and of the Holders of the Securities, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series to be affected by such supplemental
indenture. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
As provided in and subject to the provisions of the Indenture,
if an Event of Default with respect to the Securities of this series at the
time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of this series may declare the principal amount of all
the Securities of this series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), provided,
however, that, in the case of the Securities of this series issued to North
Fork Capital Trust I, if upon an Event of Default, the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Securities of this
series fails to declare the principal of all the Securities of this series to
be immediately due and payable, the holders of
<PAGE> 9
at least 25% in aggregate Liquidation Amount of the Capital Securities of North
Fork Capital Trust I then outstanding shall have such right by a notice in
writing to the Company and the Trustee. The Holders of a majority in aggregate
principal amount of the Outstanding Securities of these Securities may annul
such declaration and waive the default if the default (other than the
nonpayment of the principal of these Securities which has become due solely by
such acceleration) has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration has
been deposited with the Trustee. Should the Holders of these Securities fail
to annul such declaration and waive such default, the holders of a majority in
aggregate Liquidation Amount of the Capital Securities of North Fork Capital
Trust I shall have such right. Upon any such declaration such specified amount
of and the accrued interest (including any Additional Interest) on all the
Securities of this series shall become immediately due and payable, provided
that the payment of principal and interest (including any Additional Interest)
on such Securities shall remain subordinated to the extent provided in Article
XIV of the Indenture.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Securities Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained pursuant to Section
10.02 of the Indenture duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Securities Registrar
duly executed by, the Holder hereof or his attorney duly authorized in writing
and thereupon one or more new Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees. No service charge shall be made for
any such registration of transfer or exchange, but the Compa-
<PAGE> 10
ny may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
shall treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of such series of a different
authorized denomination, as requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Security intend that such Security constitutes
indebtedness and agree to treat such Security as indebtedness for all United
States Federal, state and local tax purposes.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
<PAGE> 1
EXHIBIT 4.3
CERTIFICATE OF TRUST
The undersigned, the trustees of North Fork Capital Trust I,
desiring to form a business trust pursuant to Delaware Business Trust Act, 12
Del. C. Section 3810, hereby certify as follows:
1. The name of the business trust being formed hereby
(the "Trust") is "North Fork Capital Trust I."
2. The name and business address of the trustee of the
Trust which has its principal place of business in the State of
Delaware is as follows:
Bankers Trust (Delaware)
1001 Jefferson Street
Suite 550
Wilmington, Delaware 19801-1454
3. This Certificate of Trust shall be effective as of
the date of filing.
Dated: December 23, 1996
----------------------------------------
Name: Daniel Healy, as Administrative
Trustee
----------------------------------------
Name: John DiGiacomo, as Administrative
Trustee
BANKERS TRUST (DELAWARE),
as Trustee
By:
------------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 4.4
DECLARATION OF TRUST
This DECLARATION OF TRUST, dated as of December 20, 1996,
among (i) North Fork Bancorporation, Inc., a Delaware corporation, as
"Depositor", (ii) Bankers Trust (Delaware) banking corporation, not in its
individual capacity but solely as trustee of the Trust (the "Delaware
Trustee"), (iii) Daniel M. Healy, an individual employed by the Depositor, not
in his individual capacity but solely as an administrative trustee of the
trust, and (iv) John DiGiacomo, an individual employed by the Depositor, not in
his individual capacity but solely as an administrative trustee of the trust
(each of such trustees in (ii), (iii) and (iv) a "Trustee" and collectively,
"Trustees"). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as North Fork
Capital Trust I, (the "Trust") in which name the Trustee, or the Depositor to
the extent provided herein, may conduct the business of the Trust, make and
execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and
sets over to the Trustees the sum of $10. The Trustees hereby acknowledge
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Trustees hereby declare that they
will hold the trust estate in trust for the Depositor. It is the intention of
the parties hereto that the Trust created hereby constitute a business trust
under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. (S) 3801 et seq.
(the "Business Trust Act"), and that this document constitutes the governing
instrument of the Trust. The Trustees hereby are authorized and directed to
execute and file a certificate of trust with the Delaware Secretary of State in
accordance with the provisions of the Business Trust Act.
<PAGE> 2
3. The Depositor and the Trustees will enter into an
amended and restated Declaration of Trust, satisfactory to each such party, to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Capital Securities and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Declaration
of Trust, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and
direct the Depositor, as the sponsor of the Trust, (i) to prepare a final
offering memorandum (the "Offering Memorandum") in relation to the offering and
sale of the Capital Securities (a) to qualified institutional buyers in
reliance on Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act") and (b) to institutional "accredited investors" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act); (ii) to make all
necessary filings and applications to have the Capital Securities eligible for
trading on PORTAL; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as the
Depositor, on behalf of the Trust, may deem necessary or desirable to register
the Capital Securities under the securities or "Blue Sky" laws; and (iv) to
execute on behalf of the Trust such Purchase Agreement with one or more initial
purchasers relating to the offering of the Capital Securities as the Depositor,
on behalf of the Trust, may deem necessary or desirable.
5. This Declaration of Trust may be executed in one or
more counterparts.
2
<PAGE> 3
6. The number of Trustees initially shall be three (3)
and thereafter the number of Trustees shall be such number as shall be fixed
from time to time by a written instrument signed by the Depositor which may
increase or decrease the number of Trustees; provided, however, that to the
extent required by the Business Trust Act, one Trustee shall either be a
natural person who is a resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable Delaware law.
Subject to the foregoing, the Depositor is entitled to appoint or remove
without cause any Trustee at any time. The Trustee may resign upon thirty
days' prior notice to the Depositor.
7. The recitals contained in this Declaration of Trust
shall be taken as statements of the Depositor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration of Trust.
8. (a) The Delaware Trustee shall not be liable,
responsible or accountable for damages or otherwise to the Trust, the
Depositor, the other Trustees or any holder of the Capital Securities for a
loss, damage or claim incurred by reason of any act or omission performed or
omitted by the Delaware Trustee in good faith on behalf of the Trust and in a
manner the Delaware Trustee reasonably believed to be within the scope of
authority conferred on the Delaware Trustee by this Declaration or by law,
except that the Delaware Trustee shall be liable for any such loss, damage or
claim incurred by reason of the Delaware Trustee's gross negligence or willful
misconduct with respect to such acts or omissions.
3
<PAGE> 4
(b) The Delaware Trustee shall be fully protected in
relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any person as to
matters the Delaware Trustee reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information, opinions, reports or
statements as to the care by or on behalf of the Trust, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which distributions to holders of Capital Securities
might properly be paid.
9. The Depositor agrees, to the fullest extent permitted
by applicable law, from the date hereof until the Depositor and the Trustees
enter into the Amended and Restated Declaration of Trust:
(a) to indemnify and hold harmless the Delaware
Trustee, or any of its officers, directors, shareholders, employees,
representatives or agents, from and against any loss, damage, liability, tax
penalty, expense or claim of any kind or nature whatsoever incurred by reason
of the creation, operation or termination of the Trust or any act or omission
performed or omitted by the Delaware Trustee in good faith on behalf of the
Trust in a manner reasonably believed to be within the scope of authority
conferred on the Delaware Trustee by this Declaration of Trust, except that the
Delaware Trustee shall not be entitled to be indemnified in respect of any
loss, damage or claim incurred by reason of its gross negligence or willful
misconduct with respect to such acts or omissions; and
(b) to advance expenses (including the fees and
expenses of counsel) incurred by the Delaware
4
<PAGE> 5
Trustee 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.
10. The provisions of Section 9 shall survive the
termination of this Declaration of Trust or the earlier resignation or removal
of the Delaware Trustee.
11. The Trust may terminate without issuing any Capital
Securities at the election of the Depositor.
12. This Declaration of Trust shall be governed by, and
construed in accordance with, the laws of the State of Delaware (without regard
to conflict of laws principles).
5
<PAGE> 6
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly exercised as of the day and year first written
above.
NORTH FORK
BANCORPORATION, INC.,
as Depositor
By:
----------------------------------
Name:
Title:
BANKERS TRUST (DELAWARE),
not in its individual capacity
but solely as Trustee
By:
----------------------------------
Name:
Title:
DANIEL M. HEALY,
not in his individual capacity
but solely as Administrative
Trustee
-------------------------------------
6
<PAGE> 7
JOHN DIGIACOMO,
not in his individual capacity
but solely as Administrative
Trustee
-------------------------------------
7
<PAGE> 1
EXHIBIT 4.5
==============================================================================
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 December 31, 1996
NORTH FORK CAPITAL TRUST I
==============================================================================
<PAGE> 2
NORTH FORK CAPITAL TRUST I
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
Section 310(a)(1) . . . . . . . . . . . . . 8.07
(a)(2) . . . . . . . . . . . . . . . . 8.07
(a)(3) . . . . . . . . . . . . . . . . 8.09
(a)(4) . . . . . . . . . . . . . . . . 2.07(a)(ii)
(b) . . . . . . . . . . . . . . . . . . 8.08
Section 311(a) . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . . . 8.13
Section 312(a) . . . . . . . . . . . . . . 5.08
(b) . . . . . . . . . . . . . . . . . . 5.08
(c) . . . . . . . . . . . . . . . . . . 5.08
Section 313(a) . . . . . . . . . . . . . . 8.14(a)
(a)(4) . . . . . . . . . . . . . . . . 8.14(b)
(b) . . . . . . . . . . . . . . . . . . 8.14(b)
(c) . . . . . . . . . . . . . . . . . . 10.09
(d) . . . . . . . . . . . . . . . . . . 8.14(c)
Section 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),
Section 315(a) . . . . . . . . . . . . . . 8.03(a)
(b) . . . . . . . . . . . . . . . . . . 8.02, 10.09
(c) . . . . . . . . . . . . . . . . . . 8.01(a)
(d) . . . . . . . . . . . . . . . . . . 8.01, 8.03
(e) . . . . . . . . . . . . . . . . . . Not Applicable
Section 316(a) . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . 5.13
(c) . . . . . . . . . . . . . . . . . . 6.07
Section 317(a)(1) . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . 5.10
Section 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
ii
<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
iii
<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 -
Exhibit C - Certificate Evidencing Common Securities
Exhibit D - Form of Restricted Securities Certificate
iv
<PAGE> 7
EXECUTION COPY
AMENDED AND RESTATED DECLARATION OF TRUST, dated as of
December 31, 1996, 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 December 23, 1996 (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 December 23, 1996 (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 8.70% Capital Securities (the "Initial
Capital Securities") by the Trust pursuant to the Purchase Agreement,
(iii) the issuance pursuant to a registered exchange for the Initial Capital
Securities of 8.70% Capital Securities (the "Exchange Capital Securities")
(each of the Initial Capital Securities and the Exchange Capital Securities
hereinafter referred to as the "Capital Securities"), (iv) 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
2
<PAGE> 9
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 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 Initial 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.
3
<PAGE> 10
"Bank" has the meaning specified in the preamble to this Declaration
of Trust.
"Bankruptcy Event" means, with respect to any Person:
(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
4
<PAGE> 11
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 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 initial Capital Securities to
be issued on the date hereof and the Exchange Capital Securities (as defined
in the Registration Agreement), treated together as a single class of
securities, 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.
5
<PAGE> 12
"Closing Date" has the meaning specified in the Purchase 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 now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Securities" means the 8.70% 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.
6
<PAGE> 13
"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. Sections 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
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<PAGE> 14
(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 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.
8
<PAGE> 15
"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 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.
"Initial Purchasers" means Salomon Brothers Inc and Keefe, Bruyette
& Woods, Inc.
"Institutional Accredited Investor" means an institutional
accredited investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act.
"Junior Subordinated Debt Securities" means the aggregate principal
amount of the Depositor's 8.70% Junior Subordinated Debt Securities due 2026,
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
9
<PAGE> 16
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 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:
10
<PAGE> 17
(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
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.
"Other Capital Securities" means the Capital Securities sold by the
Initial Purchasers in the initial offering contemplated by the Purchase
Agreement to Institutional Accredited Investors in reliance on an exemption
from the registration requirements of the Securities Act other than Rule 144A.
"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
11
<PAGE> 18
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 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.
12
<PAGE> 19
"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.
"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.
"Purchase Agreement" means the Purchase Agreement, dated as of
December 23, 1996, among the Trust, the Depositor and the Initial Purchasers.
"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.
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<PAGE> 20
"Registration Agreement" means the Registration Agreement dated as
of December 31, 1996, among the Trust, the Depositor and the Initial
Purchasers.
"Registration Exchange Offer" has the meaning specified in the
Registration Agreement.
"Registration Statement" has the meaning specified in the
Registration Agreement.
"Regulation D" means Regulation D under the Securities Act (or any
successor provision), as it may be amended from time to time.
"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, 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.
"Restricted Capital Securities" means all Capital Securities
required pursuant to Section 5.05(c) to bear a Restricted Capital Securities
Legend. Such term includes the Global Capital Securities Certificate.
"Restricted Capital Securities Certificate" means a certificate
substantially in the form set forth in Exhibit D.
"Restricted Capital Securities Legend" means a legend substantially
in the form of the legend required in Section 5.05(c).
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<PAGE> 21
"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as may be amended from time to time.
"Rule 144A Capital Securities" means the Capital Securities
purchased by the Initial Purchasers from the Trust pursuant to the Purchase
Agreement, other than the Other Capital Securities.
"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.
"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 I.
"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
15
<PAGE> 22
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.
ARTICLE II
Continuation of the Trust
SECTION 2.1 Name. The Trust continued hereby shall be known as
"North Fork Capital Trust I", 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.
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), 1001 Jefferson Street, Suite 550, Wilmington, DE
19801, 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.
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<PAGE> 23
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 December 23, 1996, the Depositor and the Administrative Trustees,
on behalf of the Trust, and pursuant to the Original Declaration of Trust, and
the Initial Purchasers executed and delivered the Purchase 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
Initial Purchasers, 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 99.637% 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 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 3,093 Common Securities having an aggregate Liquidation
Amount of $3,093,000 against payment by the Depositor of $3,081,772 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 $103,093,000, 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
$102,718,772.
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<PAGE> 24
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.
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:
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(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 Purchase Agreement, the
Registration 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;
(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
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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:
(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;
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(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
(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"
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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 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,
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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 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 Purchase 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.
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(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.
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,
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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 December 31, 1996, 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 June 15 and December 15 of each
year, commencing on June 15, 1997. 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 8.70% 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
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Securities shall be payable at a rate of 8.70% 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 8.70% 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. In addition, in the
event that a Registration Default (as defined in the Registration Agreement)
occurs, an additional amount will be payable, as liquidated damages, on the
Junior Subordinated Debt Securities and the Trust Securities, respectively, at
a rate of 0.25% per annum of the Liquidation Amount from and including the
date on which such Registration Default shall occur to but excluding the date
on which such Registration Default shall have been cured. The aggregate
amount of such additional amounts payable with respect to the preceding
sentence shall not exceed 0.25% per annum (each type of increase in
Distribution, described in this Section 4.01(c), an "Additional
Distribution").
(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.
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(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 June 1 and December
1.
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", and/or
"private placement" numbers (if then generally in use), and, if so, the
Property Trustee shall indicate the "CUSIP" or "private placement" 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
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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 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
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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 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
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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 Securities have been cured, waived or
otherwise eliminated. Until all such Events of Default under this Declaration
of Trust with respect to the Capital
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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 shall be issued in $100,000 Liquidation Amount (100
Capital Securities) and integral multiples of $1,000 in excess thereof, 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
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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) Upon their original issuance, Capital Securities Certificates
representing Rule 144A Capital Securities shall be issued in the form of a
Global Capital Securities Certificate registered in the name of Cede & Co.
("Cede") as DTC's nominee and deposited with or on behalf of DTC for credit by
DTC to the respective accounts of the Owners thereof (or such other accounts
as they may direct). 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) Upon their original issuance, Capital Securities Certificates
representing Other Capital Securities shall be issued in definitive form and
may not be represented by the Global Security.
(d) 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
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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 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 exchanged for Other
Capital Securities or 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 exchanged for Other Capital Securities or 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
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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 and,
to the extent required in Section 5.05(c), a Restricted Capital Securities
Certificate in a form substantially similar to that attached hereto as Exhibit
D, 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
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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 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.
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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 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.
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The Capital Securities will be issued, and may be transferred, only
in blocks having a Liquidation Amount of not less than $100,000. Any
transfer, sale or other disposition of Capital Securities in a block having a
Liquidation Amount of less than $100,000 shall be deemed to be void and of no
legal effect whatsoever. Any such transferee shall be deemed not to be the
Holder of such Capital Securities for any purpose, including but not limited
to the receipt of Distributions on such Capital Securities, and such
transferee shall be deemed to have no interest whatsoever in such Capital
Securities.
(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 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).
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(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) provided that if the Capital Security to be transferred
in whole or in part is a Restricted Capital Security, the Securities
Registrar shall have received a Restricted Capital Securities Certificate
duly executed by the transferor Holder or such Holder's attorney duly
authorized in writing.
(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.
(iv) Limitations Relating to Liquidation Amount. Notwithstanding
any other provision of this Declaration of Trust and unless otherwise
specified as permitted by this Declaration of Trust, Capital Securities
or portions thereof may be transferred or exchanged only in Liquidation
Amounts of not less than $100,000. Any transfer, exchange or other
disposition of Capital Securities in contravention of this
Section 5.05(b)(v) shall be deemed to be void and of no legal effect
whatsoever, any such transferee shall be deemed not to be the Holder or
owner of any beneficial interest in such Capital Securities for any
purpose, including but not limited to the receipt of interest payable on
such Capital Securities, and such transferee shall be deemed to have no
interest whatsoever in such Capital Securities.
(c) Restricted Securities Legend. (i) Except as set forth in this
Section 5.05(c), all Capital Securities shall bear a restricted capital
securities legend substantially in the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
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MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY PRIOR TO THE DATE WHICH IS THREE YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH NORTH FORK
BANCORPORATION, INC. (THE "CORPORATION") OR ANY AFFILIATE OF THE
CORPORATION WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
SECURITY) (THE "RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE
CORPORATION, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH
(a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT ACQUIRING
THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE TRUST'S AND THE PROPERTY TRUSTEE'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE DECLARATION OF TRUST,
A COPY OF WHICH MAY BE OBTAINED FROM THE CORPORATION OR THE PROPERTY
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER
THE RESALE RESTRICTIONS TERMINATION DATE."
(ii) Subject to Section 5.05(d) and the following paragraphs of
this Section 5.05(c), a new Capital Security (other than a Global Capital
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Security) that does not bear a Restricted Capital Securities Legend may
be issued in exchange for or in lieu of a Restricted Capital Security or
any portion thereof that bears such a legend if, in the Depositor's
judgment, placing such a legend upon such new Capital Security is not
necessary to ensure compliance with the registration requirements of the
Securities Act, and the Property Trustee, at the written direction of the
Trust in the form of an Officers' Certificate, shall countersign and
deliver such a new Capital Security as provided in this Article V.
(iii) Notwithstanding the foregoing provisions of this
Section 5.05(c), a successor Capital Security of a Capital Security that
does not bear a Restricted Capital Securities Legend shall not bear such
form of legend unless the Depositor has reasonable cause to believe that
such successor Capital Security is a "restricted security" within the
meaning of Rule 144 under the Securities Act, in which case the Property
Trustee, at the written direction of the Trust in the form of an
Officers' Certificate, shall countersign and deliver a new Capital
Security bearing a Restricted Capital Securities Legend in exchange for
such Successor Capital Security as provided in this Article V.
(iv) Upon any sale or transfer of a Restricted Capital Security
(including any Restricted Capital Security represented by a Global
Capital Security) pursuant to an effective registration statement under
the Securities Act or pursuant to Rule 144 under the Securities Act after
such registration ceases to be effective: (A) in the case of any
Restricted Capital Security that is a definitive Capital Security, the
Securities Registrar shall permit the Holder thereof to exchange such
Restricted Capital Security for a definitive Capital Security that does
not bear the Restricted Securities Legend and rescind any restriction on
the transfer of such Restricted Capital Security; and (B) in the case of
any Restricted Capital Security that is represented by a Global Capital
Security, the Securities Registrar shall permit the Holder of such Global
Capital Security to exchange such Global Capital Security for another
Global Capital Security
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that does not bear the Restricted Securities Legend.
(v) If Restricted Capital Securities are being presented or
surrendered for transfer or exchange then there shall be (if so required
by the Property Trustee), (A) if such Restricted Capital Securities are
being delivered to the Securities Registrar by a Holder for registration
in the name of such Holder, without transfer, a certification from such
Holder to that effect; or (B) if such Restricted Capital Securities are
being transferred, (i) a certification from the transferor in a form
substantially similar to that attached hereto as Exhibit D, and (ii) if
the Trust or Securities Registrar so requests, evidence reasonably
satisfactory to them as to the compliance with the restrictions set forth
in the Restricted Capital Securities Legend.
(d) Exchange Offer. The Capital Securities may be exchanged for
Exchange Capital Securities (as defined in the Indenture) pursuant to the
terms set forth in the Registration Agreement and Article XII of the Indenture
(the "Exchange Offer"). The Property Trustee shall make the exchange as
follows:
The Depositor shall present the Property Trustee with an Officers'
Certificate certifying the following:
(i) upon issuance of the Exchange Capital Securities, the
transactions contemplated by the Exchange Offer have been
consummated; and
(ii) the number of Capital Securities properly tendered in the
Exchange Offer that are represented by a Global Capital
Security and the number of Capital Securities properly tendered
in the Exchange Offer that are represented by Other Capital
Securities, the name of such Holder of such Other Capital
Securities, the liquidation amount of Capital Securities
properly tendered in the Exchange Offer by each such Holder and
the name and address to which Other Capital Securities for
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Exchange Capital Securities shall be registered and sent for
each such Holder.
The Property Trustee, upon receipt of (i) such Officers'
Certificate, (ii) an Opinion of Counsel (x) to the effect that the Exchange
Capital Securities have been registered under Section 5 of the Securities Act
and the Indenture, Declaration of Trust and Guarantee have been qualified
under the Trust Indenture Act and (y) with respect to the matters set forth in
Section 4(s) of the Registration Agreement and (iii) a Company Order (as
defined in the Indenture), shall authenticate (A) a Global Capital Security
for Exchange Capital Securities in aggregate liquidation amount equal to the
aggregate liquidation amount of Capital Securities represented by a Global
Capital Security indicated in such Officers' Certificate as having been
properly tendered and (B) Capital Securities Certificates representing
Exchange Capital Securities registered in the names of, and in the liquidation
amounts indicated in such Officers' Certificate.
If, upon consummation of the Exchange Offer, less than all the
outstanding Capital Securities shall have been properly tendered and not
withdrawn, the Property Trustee shall make an endorsement on the Global
Capital Security for Capital Securities indicating that reduction in the
number and aggregate liquidation amount represented thereby as a result of the
Exchange Offer.
The Trust shall deliver such Capital Securities Certificates for
Exchange Capital Securities to the Holders thereof as indicated in such
Officers' Certificate.
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
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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
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
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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 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
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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.
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
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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 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,
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(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, 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.
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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, 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.
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(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 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
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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.
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
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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 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
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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, 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
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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 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
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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 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
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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 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
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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.
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 pursuant to the Registration Agreement.
Notwithstanding the foregoing, no provisions of this Declaration of Trust
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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 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.
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(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 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
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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:
(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
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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 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
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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 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;
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(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 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
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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 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
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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
(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.
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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 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
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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, 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-
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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.
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
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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 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.
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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, 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
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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 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
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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 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
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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 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
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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 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 1998, 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
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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 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
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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 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.
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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, 2036 (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 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
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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 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
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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 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
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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.
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
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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, 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,
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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 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; (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
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investment company under the 1940 Act; or (iii) to modify, correct or
supplement in any respect the provisions relating to the exchange of the Trust
Securities for identical securities pursuant to the Registration Rights
Agreement; provided, however, that in the case of clauses (i) and (iii), 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.
(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
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<PAGE> 90
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 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
84
<PAGE> 91
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.
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
85
<PAGE> 92
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), 1001 Jefferson Street, Suite 550, Wilmington, Delaware 19801,
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.
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
86
<PAGE> 93
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 and
the consummation of an exchange offer pursuant to the Registration Rights
Agreement. By its terms, however, this Declaration of Trust incorporates
certain provisions of the Trust Indenture Act. Upon the consummation of an
exchange offer pursuant to the Registration Rights Agreement, clauses (a),
(b), (c) and (d), below, shall apply to this Declaration of Trust.
(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 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
87
<PAGE> 94
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:
BANKERS TRUST (DELAWARE), as
Delaware Trustee and not
in its individual capacity
by
---------------------------------
Name:
Title:
-------------------------------------
Daniel M. Healy,
as Administrative Trustee
88
<PAGE> 95
-------------------------------------
John N. DiGiacomo,
as Administrative Trustee
89
<PAGE> 96
EXHIBIT A
CERTIFICATE OF TRUST OF
NORTH FORK CAPITAL TRUST I
THIS CERTIFICATE OF TRUST of North Fork Capital Trust I (the "Trust"), dated
as of December 31, 1996, 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
December 31, 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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<PAGE> 97
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> 98
EXHIBIT B
IF THE CAPITAL SECURITY IS A RESTRICTED SECURITY,
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE WHICH
IS THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH NORTH FORK BANCORPORATION, INC. (THE "CORPORATION") OR
ANY AFFILIATE OF THE CORPORATION WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTIONS TERMINATION
DATE") ONLY (A) TO THE CORPORATION, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH,
ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE TRUST'S AND THE PROPERTY TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF
1
<PAGE> 99
THEM IN ACCORDANCE WITH THE DECLARATION OF TRUST, A COPY OF WHICH MAY BE
OBTAINED FROM THE TRUST OR THE PROPERTY TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTIONS
TERMINATION DATE."]
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 I 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.]
The Capital Securities are issued, any may be transferred, only in blocks
having a Liquidation Amount of not less than $100,000. Any transfer, sale or
other disposition of Capital Securities in a block having a Liquidation Amount
of less than $100,000 shall be deemed to be void and of no legal effect
whatsoever. Any such
2
<PAGE> 100
transferee shall be deemed not to be the Holder of such Capital Securities for
any purpose, including but not limited to the receipt of Distributions on such
Capital Securities, and such transferee shall be deemed to have no interest
whatsoever in such Capital Securities.
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, 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.
3
<PAGE> 101
LIQUIDATION AMOUNT OF
CERTIFICATE NUMBER CAPITAL SECURITIES
CUSIP NO. [ ]
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
NORTH FORK CAPITAL TRUST I
8.70% CAPITAL TRUST PASS-THROUGH SECURITIES SM (TRUPS)SM
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
North Fork Capital Trust I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede &
Co. (the "Holder") is the registered owner of _________ ( ) Capital
Securities of the Trust representing an undivided beneficial interest in the
assets of Trust and has designated North Fork Capital Trust I 8.70% Capital
Trust Pass-through Securities(SM) (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
December 31, 1996, as the same may be amended from time to time (the
"Declaration of Trust") among North Fork Bancorporation, Inc., as Depositor,
Bankers Trust Company, as Property Trustee, Bankers Trust (Delaware), as
Delaware Trustee and the Administrative Trustees named therein, including the
designation of the terms of 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 December 31, 1996, (the "Guarantee"), to the
extent provided therein. The Trust will furnish a copy of the Declaration of
Trust and the
4
<PAGE> 102
Guarantee to the Holder without charge upon written request to the Trust at
its principal place of business or registered office.
Terms used but not defined herein have the meanings set forth in the
Declaration of Trust.
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this Certificate this __ day of ________, ___.
NORTH FORK CAPITAL TRUST I
by
-----------------------------
Name:
Title: Administrative
Trustee
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY, as
Property Trustee
by
-----------------------------
Authorized Signatory
5
<PAGE> 103
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.
6
<PAGE> 104
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
LIQUIDATION AMOUNT OF
CERTIFICATE NUMBER COMMON SECURITIES
Certificate Evidencing Common Securities
of
North Fork Capital Trust I
8.70% Common Securities
(Liquidation Amount $1,000 per Common Security)
North Fork Capital Trust I, 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 8.70% 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 December, 31 1996, as
the same may be amended from time to time (the "Declaration of Trust") among
North Fork Bancorporation, Inc., as Depositor, Bankers Trust Company, as
Property Trustee, Bankers Trust (Delaware), as Delaware Trustee, and the
Administrative Trustees named therein, including the designation of the terms
of 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.
1
<PAGE> 105
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 I
by
-----------------------------
Name:
Title: Administrative
Trustee
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY, as
Property Trustee
by
-----------------------------
Authorized Signatory
2
<PAGE> 106
EXHIBIT D
[Form of Restricted Securities Certificate]
RESTRICTED CAPITAL SECURITIES CERTIFICATE
(For transfers pursuant to Section 5.05(b)
of the Declaration of Trust)
[____________________________],
as Security Registrar
[address]
Re: 8.70% Capital Securities of
North Fork Capital Trust I (the "Trust")
(the "Capital Securities")
Reference is made to the Amended and Restated Declaration of Trust,
dated as of December 31, 1996 (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. Terms used herein and defined in the Declaration of
Trust or in Regulation D, Rule 144A or Rule 144 under the U.S. Securities Act
of 1933, as amended (the "Securities Act"), are used herein as so defined.
This certificate relates to $_______________ aggregate Liquidation
Amount of Capital Securities, which are evidenced by the following
certificate(s) (the "Specified Securities"):
CUSIP No(s). ------------------------------------------------------------
CERTIFICATE No(s).
------------------------------------------------------
CURRENTLY IN BOOK-ENTRY FORM: Yes No (check one)
-- --
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of
3
<PAGE> 107
the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Capital Securities
Certificate, they are held through the Clearing Agency or a Clearing Agency
Participant in the name of the Undersigned, as or on behalf of the Owner. If
the Specified Securities are not represented by a Global Capital Securities
Certificate, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be transferred
to a person (the "Transferee") who will take delivery in the form of a
Restricted Capital Security. In connection with such transfer, the Owner
hereby certifies that, unless such transfer is being effected pursuant to an
effective registration statement under the Securities Act, it is being
effected in accordance with one of the following (CHECK ONE):
__(A) transferred to the Corporation; or
__(B) exchanged for the undersigned's own account without transfer; or
__(C) transferred pursuant to and in compliance with Rule 144A under the
Securities Act; or
__(D) to an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the
Securities Act of 1933 that is acquiring the Capital Securities for
its own account, or for the account of such an institutional
"accredited investor," for investment purposes and not with a view
to, or for offer or sale in connection with, any distribution in
violation of the Securities Act; or
__(E) transferred pursuant to another available exemption from the
registration requirements of the Securities Act.
Unless such transfer is being effected in accordance with one of the above,
the Transfer Agent will refuse to register any of the Capital Securities
evidenced by this certificate in the name of any person other than the Holder
thereof; provided, however, that if (4) or (5) is applicable, the
4
<PAGE> 108
Transfer Agent may require, prior to registering any such transfer of the
Capital Securities such legal opinions, certifications and other information
as the Trust has reasonably requested to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, such as the exemption
provided by Rule 144 under such Act; provided, further, that if (3) is
applicable, the transferee must also certify that it is a qualified
institutional buyer as defined in Rule 144A.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trust and the Initial
Purchasers.
Dated:
----------------------------------------
(Print the name of the Undersigned,
as such term is defined in the
second paragraph of this
certificate.)
By:
-------------------------------------
Name:
Title:
(If the Undersigned is a
corporation, partnership or
fiduciary, the title of the person
signing on behalf of the
Undersigned must be stated.)
5
<PAGE> 1
Exhibit 4.6
IF THE EXCHANGE CAPITAL SECURITIES CERTIFICATE IS TO BE A
GLOBAL SECURITIES CERTIFICATE, INSERT--[This Exchange Capital Securities
Certificate is a Global Capital Securities Certificate within the meaning of the
Amended and Restated Declaration of Trust (the "Declaration of Trust") and is
registered in the name of The Depository Trust Company (the "Depositary") or a
nominee of the Depositary. This Exchange Capital Securities Certificate is
exchangeable for Exchange Capital Securities Certificates registered in the name
of a person other than the Depositary or its nominee only in the limited
circumstances described in the Declaration of Trust, and no transfer of this
Exchange Capital Securities Certificate (other than a transfer of this Exchange
Capital Securities Certificate as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in the limited circumstances
described in the Declaration of Trust.
Unless this Exchange Capital Securities Certificate is
presented by an authorized representative of The Depositary Trust Company (55
Water Street, New York, New York) to North Fork Capital Trust I or its agent for
registration of transfer, exchange or payment, and any Exchange Capital
Securities Certificate issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The Depositary Trust
Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]
The Exchange Capital Securities are issued, and may be transferred, only in
blocks having a Liquidation Amount of not less than $100,000. Any transfer, sale
or other disposition of Exchange Capital Securities in a block having a
Liquidation Amount of less than $100,000 shall be deemed to be void and of no
legal effect whatsoever. Any such transferee shall be deemed not to be the
Holder of such Exchange Capital Securities for any purpose, including but not
limited to the receipt of Distributions on such Exchange Capital Securities, and
such transferee shall be deemed to have no interest whatsoever in such Exchange
Capital Securities.
<PAGE> 2
NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (EACH, A "PLAN"),
NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S
INVESTMENT IN THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING "PLAN
ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD THIS EXCHANGE CAPITAL SECURITIES
CERTIFICATE OR ANY INTEREST HEREIN, UNLESS SUCH PURCHASER OR HOLDER IS COVERED
BY THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1 OR 84-14 WITH
RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS EXCHANGE
CAPITAL SECURITIES CERTIFICATE OR ANY INTEREST HEREIN WILL BE DEEMED TO HAVE
REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF THAT IT EITHER (A) IS NOT A PLAN
OR A PLAN ASSET ENTITY AND IS NOT PURCHASING SUCH SECURITIES ON BEHALF OF OR
WITH "PLAN ASSETS" OF ANY PLAN, OR (B) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF
AVAILABLE UNDER PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 WITH RESPECT TO SUCH
PURCHASE OR HOLDING.
2
<PAGE> 3
LIQUIDATION AMOUNT OF
CERTIFICATE NUMBER EXCHANGE CAPITAL SECURITIES
CUSIP NO. [ ]
CERTIFICATE EVIDENCING EXCHANGE CAPITAL SECURITIES
OF
NORTH FORK CAPITAL TRUST I
8.70% EXCHANGE CAPITAL TRUST PASS-THROUGH SECURITIES(SMOG)
(TRUPS)(SM)
(LIQUIDATION AMOUNT $1,000 PER EXCHANGE CAPITAL SECURITY)
North Fork Capital Trust I, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Cede & Co. (the "Holder") is the registered owner of _________ ( ) Exchange
Capital Securities of the Trust representing an undivided beneficial interest in
the assets of Trust and has designated North Fork Capital Trust I 8.70% Exchange
Capital Trust Pass-through Securities(SM) (Liquidation Amount $1,000 per
Exchange Capital Security) (the "Exchange Capital Securities"). The Exchange
Capital Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer as provided in Section 5.05 of
the Declaration of Trust (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Exchange Capital Securities are set forth in, and this certificate and the
Exchange Capital Securities presented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Declaration of Trust of the Trust dated as of December 31, 1996, as the same
may be amended from time to time (the "Declaration of Trust") among North Fork
Bancorporation, Inc., as Depositor, Bankers Trust Company, as Property Trustee,
Bankers Trust (Delaware), as Delaware Trustee and the Administrative Trustees
named therein, including the designation of the terms of Exchange Capital
Securities as set forth therein. The Holder is entitled to the benefits of the
Exchange Guarantee entered into by North Fork Bancorporation, Inc., a
corporation, and Bankers Trust Company, as Guarantee trustee, dated as of _____
___, 1997, (the "Guarantee"), to the extent provided
3
<PAGE> 4
therein. The Trust will furnish a copy of the Declaration of Trust and the
Guarantee to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Terms used but not defined herein have the meanings set forth in the
Declaration of Trust.
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this Certificate this __ day of ________, ___.
NORTH FORK CAPITAL TRUST I
by
Name:
Title: Administrative
Trustee
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY, as
Property Trustee
by
Authorized Signatory
4
<PAGE> 5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Exchange Capital Security to:
(Insert assignee's social security or tax identification
number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Exchange Capital Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: __________
Signature
(Sign exactly as your name appears on the other side of this Exchange
Capital Security Certificate)
The signature(s) should be guaranteed by an eligible
guarantor institution (banks, stockbrokers, savings
and loan associations and credit unions with
membership in an approved signature guarantee
medallion program), pursuant to SEC Rule 17Ad-15.
5
<PAGE> 1
Exhibit 4.7
================================================================================
EXCHANGE GUARANTEE AGREEMENT
Between
NORTH FORK BANCORPORATION, INC.
as (Guarantor)
and
BANKERS TRUST COMPANY
(as Trustee)
Dated as of
____________ ___, 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
EXCHANGE GUARANTEE AGREEMENT, dated as of
______ 1997 (the "Exchange Guarantee"), 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 I, a
Delaware statutory business trust (the "Issuer").
WHEREAS pursuant to an Amended and Restated Declaration of
Trust (the "Declaration of Trust"), dated as of December 31, 1996, among the
trustees of the Issuer, the Guarantor, as sponsor, and the holders from time to
time of undivided beneficial interests in the assets of the Issuer, the Issuer
is issuing on the date hereof capital securities, having an aggregate
liquidation among of $ , such capital securities being designated the 8.70%
Exchange Capital Securities (the "Exchange Capital Securities") in connection
with the consummation of the Exchange Offer (as defined in the Registration
Agreement dated as of December 31, 1996 by and among the Guarantor, the Issuer
and the initial purchasers named therein).
WHEREAS, as incentive for the Holders to exchange the initial
Capital Securities (as defined in the Declaration of Trust) issued on the date
of the Declaration of Trust for the Exchange Capital Securities, the Guarantor
desires irrevocably and unconditionally to agree, to the extent set forth in
this Exchange Guarantee, to pay to the Holders of the Exchange Capital
Securities the Guarantee Payments (as defined below). The Guarantor agrees to
make certain other payments on the terms and conditions set forth herein.
WHEREAS, the Guarantor has executed and delivered a guarantee
agreement (the "Common Securities Guarantee") for the benefit of the holders of
the Common Securities (as defined in the Declaration of Trust), the terms of
which provide that if an Event of Default (as defined in the Declaration of
Trust) has occurred and is continuing, the rights of holders of the Common
Securities to receive Guarantee Payments under the Common Securities Guarantee
are subordinated, to the extent and in the manner set forth in
<PAGE> 6
the Common Securities Guarantee, to the rights of holders to receive Guarantee
Payments under this Exchange Guarantee.
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 Exchange Guarantee for the benefit of
the Holders from time to time of the Trust Securities.
ARTICLE I
Definitions
SECTION 1.1. Definitions. As used in this Exchange Guarantee,
the terms set forth below shall, unless the context otherwise requires, have the
following meanings. Capitalized 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 Exchange Guarantee.
"Debt" shall have the meaning specified in the Indenture.
"Declaration of Trust" shall have the meaning specified in the
first recital of this Exchange Guarantee.
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Exchange Guarantee; 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
2
<PAGE> 7
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 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 Exchange
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 Exchange Guarantee and thereafter means each such
Successor Guarantee Trustee.
"Guarantor" shall have the meaning specified in the first
recital of this Exchange Guarantee.
"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"
3
<PAGE> 8
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 trustee, relating to the issuance of the Junior
Subordinated Debt Securities.
"Issuer" shall have the meaning specified in the first recital
of this Exchange Guarantee.
"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 Exchange Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a 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,
4
<PAGE> 9
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 Exchange Guarantee, and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"Senior 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 Exchange Guarantee.
ARTICLE II
Trust Indenture Act
SECTION 2.1. Trust Indenture Act; Application. (a) This
Exchange Guarantee will not be qualified under the Trust Indenture Act except
upon the effectiveness of a registration statement with respect to this Exchange
Guarantee 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 Exchange Guarantee limits, qualifies or conflicts with the duties imposed
by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
SECTION 2.2. 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 iden-
5
<PAGE> 10
tical 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.
(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 2.3. 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 1998, 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 2.4. 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 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with such conditions precedent, if any, provided for in this Exchange Guarantee
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by any officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.6. Events of Default; Waiver. The Holders of a
Majority in Liquidation Amount of the Securities may, by vote, on behalf of the
Holders, waive any past Event of Default and its consequences. Upon such waiver,
any such Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Exchange
Guarantee, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent therefrom.
SECTION 2.7. Event of Default; Notice. (a) The Guarantee
Trustee shall, within 90 days after the occurrence
6
<PAGE> 11
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 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 2.8. Conflicting Interests. The Declaration of Trust
shall be deemed to be specifically described in this Exchange Guarantee for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III
Powers, Duties and Rights of the
Guarantee Trustee
SECTION 3.1. Powers and Duties of the Guarantee Trustee. (a)
This Exchange Guarantee shall be held by the Guarantee Trustee for the benefit
of the Holders, and the Guarantee Trustee shall not transfer this Exchange
Guarantee to any Person except 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 Exchange Guarantee for the benefit of the
Holders.
(c) The Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events
7
<PAGE> 12
of Default that may have occurred, shall undertake to perform only such duties
as are specifically set forth in this Exchange Guarantee, and no implied
covenants shall be read into this Exchange Guarantee 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 Trustee shall exercise such of
the rights and powers vested in it by this Exchange Guarantee, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Exchange Guarantee shall be construed
to relieve the Guarantee Trustee from liability for its own negligent action,
its own negligent failure to act or its own 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
Exchange Guarantee, and the Guarantee Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Exchange
Guarantee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming
to the requirements of this Exchange Guarantee; but in the
case of any such certificates or opinions that by any
provision hereof or of the Trust Indenture Act are
specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Exchange Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was made;
8
<PAGE> 13
(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 available
to the Guarantee Trustee, or exercising any trust or power conferred
upon the Guarantee Trustee under this Exchange Guarantee; and
(iv) no provision of this Exchange Guarantee shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers if the Guarantee Trustee
shall have reasonable grounds for believing that the repayment of such
funds or liability is not assured to it under the terms of this
Exchange Guarantee or indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.
SECTION 3.2. Certain Rights of Guarantee Trustee. (a) Subject
to the provisions of Section 3.01:
(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
Exchange Guarantee shall be sufficiently evidenced by all Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Exchange Guarantee,
the Guarantee Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting to take any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate which, upon
receipt of such request from the Guarantee Trustee, shall be promptly
delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and
the advice or written opinion of such
9
<PAGE> 14
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 and may be one of its employees.
The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Exchange Guarantee
from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Exchange
Guarantee at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee such security and
indemnity 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 Exchange Guarantee.
(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 Exchange Guarantee
the Guarantee Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (A) may request instructions
from the Holders, (B) may refrain from enforcing such remedy or right
or taking such other
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<PAGE> 15
action until such instructions are received and (C) shall be fully
protected in acting in accordance with such instructions.
(b) No provision of this Exchange Guarantee shall be deemed to
impose any duty or obligation on the Guarantee Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on it
in any jurisdiction in which it shall be illegal, or in which the Guarantee
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
SECTION 3.3. Indemnity. The Guarantor agrees to indemnify the
Guarantee Trustee 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 Exchange Guarantee,
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
Exchange Guarantee. This indemnity shall survive the termination of this
Exchange Guarantee or the resignation or removal of the Guarantee Trustee.
SECTION 3.4. 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 4.1. Guarantee Trustee; Eligibility. (a) There shall
at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of
at least $50,000,000, and shall
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<PAGE> 16
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 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 4.2. 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 Succes-
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<PAGE> 17
sor Guarantee Trustee. Such court may thereupon, after prescribing such notice,
if any, as it may deem proper, appoint a Successor Guarantee Trustee.
ARTICLE V
Guarantee
SECTION 5.1. Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by 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 5.2. Waiver of Notice and Demand. The Guarantor hereby
waives notice of acceptance of the Exchange Guarantee and of any liability to
which it applies or may apply, presentment, demand for payment, any right to
require a proceeding first against the Guarantee Trustee, 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 5.3. Obligations Not Affected. The obligations,
covenants, agreements and duties of the Guarantor under this Exchange Guarantee
shall in no way be affected or impaired by reason of the happening from time to
time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer 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
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<PAGE> 18
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 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 5.4. Rights of Holders. The Guarantor expressly
acknowledges that: (i) this Exchange Guarantee will be deposited with the
Guarantee Trustee to be held for the benefit of the Holders; (ii) the Guarantee
Trustee has the right to enforce this Exchange Guarantee on behalf of the
Holders; (iii) the Holders of a Majority in Liquidation Amount of the Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee in respect of this Exchange
Guarantee or exercising any trust or power conferred upon the Guarantee Trustee
under this Exchange Guarantee; and (iv) any Holder may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Exchange Guarantee, without first instituting a legal proceeding against the
Issuer or any other Person.
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<PAGE> 19
SECTION 5.5. Guarantee of Payment. This Exchange Guarantee
creates a guarantee of payment and not of collection. This Exchange Guarantee
will not be discharged except by payment of the Guarantee Payments in full
(without duplication of amounts theretofore paid by the Issuer) or upon
distribution of Junior Subordinated Debt Securities to Holders as provided in
the Declaration of Trust.
SECTION 5.6. 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 Exchange Guarantee 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 Exchange
Guarantee, if at the time of any such payment, any amounts are due and unpaid
under this Exchange Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7. 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 Exchange Guarantee 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 6.1. Subordination. This Exchange Guarantee will
constitute an unsecured obligation of the Guarantor and will rank subordinate
and junior in right of payment to all Senior 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 Exchange Guarantee 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.
15
<PAGE> 20
SECTION 6.2. Pari Passu Guarantees. This Exchange Guarantee
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 I.
ARTICLE VII
Termination
SECTION 7.1. Termination. This Exchange Guarantee shall
terminate and be of no further force and effect upon (i) full payment of the
Redemption Price of all 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 Exchange Guarantee 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 Exchange Guarantee.
ARTICLE VIII
Miscellaneous
SECTION 8.1. Successors and Assigns. All guarantees and
agreements contained in this Exchange Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders 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 8.2. 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 Exchange
Guarantee 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 8.3. Notices. Any notice, request or other
communication required or permitted to be given here-
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<PAGE> 21
under shall be in writing, duly signed by the party giving such notice, and
delivered, telecopied (confirmed by delivery of the original) or mailed by first
class mail as follows:
(a) if given to the Guarantor, to the address 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
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<PAGE> 22
confirmed, or mailed by first class mail, postage prepaid, except that if a
notice or other document is refused delivery or cannot be delivered because of a
changed address of which no notice was given, such notice or other document
shall be deemed to have been delivered on the date of such refusal or inability
to deliver.
SECTION 8.4. Benefit. This Exchange Guarantee is solely for
the benefit of the Holders and is not separately transferable from the Trust
Securities.
SECTION 8.5. Interpretation. In this Exchange Guarantee,
unless the context otherwise requires:
(a) capitalized terms used in this Exchange Guarantee but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 1.01;
(b) a term defined anywhere in this Exchange Guarantee has the
same meaning throughout;
(c) all references to "the Exchange Guarantee" or "this
Exchange Guarantee" are to this Exchange Guarantee as modified,
supplemented or amended from time to time;
(d) all references in this Exchange Guarantee to Articles and
Sections are to Articles and Sections of this Exchange Guarantee unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Exchange Guarantee unless otherwise defined
in this Exchange Guarantee or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice
versa; and
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 8.6 Governing Law. THIS EXCHANGE GUARANTEE SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
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<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 EXCHANGE GUARANTEE 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 4.8
EXECUTION COPY
NORTH FORK CAPITAL TRUST I
$100,000,000
8.70% Capital Trust Pass-through Securities(SM)
(TRUPS(SM))
(Liquidation Amount $1,000 per Capital Security)
Fully and Unconditionally Guaranteed
by
NORTH FORK BANCORPORATION, INC.
REGISTRATION AGREEMENT
New York, New York
December 31, 1996
Salomon Brothers Inc
Keefe, Bruyette & Woods, Inc.
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
North Fork Capital Trust I, a Delaware statutory business
trust (the "Trust"), and North Fork Bancorporation, Inc., a Delaware
corporation (the "Company"), as guarantor, propose to issue and sell to Salomon
Brothers Inc and Keefe, Bruyette & Woods, Inc. (the "Purchasers"), upon the
terms set forth in a purchase agreement of even date herewith (the "Purchase
Agreement"), 100,000 of the Trust's 8.70% Capital Trust Pass-through
Securities, liquidation amount $1,000 per Capital Trust Pass-through Security
(the "Capital Securities" and together with the guarantee by the Company of the
payment of the Capital Securities to the extent set forth in the Guarantee, the
"Pass-through Securities") (the "Initial Placement"). The proceeds of the sale
by the Trust of the Pass-through Securities and its 8.70% Common Securities,
liquidation amount $1,000 per Common Security (the "Common Securities"), are to
be invested in the 8.70% Junior Subordinated Debt Securities of the Company
having an aggregate principal amount equal to the aggregate liquidation amount
<PAGE> 2
of the Capital Securities and the Common Securities (the "Junior Subordinated
Debt Securities"). As an inducement to the Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to your obligations
thereunder, the Trust and the Company agree with you, (i) for your benefit and
(ii) for the benefit of the holders from time to time (each of the foregoing a
"Holder" and together the "Holders") of the Securities (as defined herein) or
the Exchange Securities (as defined herein), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Additional Distributions" has the meaning given such term in
Section 7(a) hereof.
"Liquidated Damages" has the meaning given such term in
Section 7(a) hereof.
"Affiliate" of any specified person means any other person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person.
"Closing Date" has the meaning given such term in the
Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Declaration" means the Amended and Restated Declaration of
Trust relating to the Capital Securities and the Exchange Capital Securities
dated as of December 31, 1996, among the Company, as Depositor, Daniel M. Healy
and John N. DiGiacomo, as administrative trustees, the Property Trustee and
Bankers Trust (Delaware), a Delaware corporation, as Delaware trustee, as the
same may be amended from time to time in accordance with the terms thereof.
"Distribution Event" shall mean the distribution of Junior
Subordinated Debt Securities or Exchange Junior
2
<PAGE> 3
Subordinated Debt Securities, as the case may be, to the holders of Capital
Securities or Exchange Capital Securities, as the case may be, as provided in
the Declaration.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Capital Securities" means securities of the Trust to
be issued under the Declaration and which are identical in all material
respects to the Capital Securities (except that the distribution rate step-up
provisions and the transfer restrictions will be modified or eliminated, as
appropriate).
"Exchange Guarantee" means the guarantee by the Company of the
Exchange Capital Securities, identical in all material respects to the
Guarantee.
"Exchange Junior Subordinated Debt Securities" means debt
securities of the Company to be issued under the Junior Subordinated Indenture
and which are identical in all material respects to the Junior Subordinated
Debt Securities (except that the interest rate step-up provisions and the
transfer restrictions will be modified or eliminated, as appropriate).
"Exchange Offer Registration Period" means the 180-day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration
statement of the Trust and the Company on an appropriate form under the Act
with respect to the Registered Exchange Offer (and, if a Distribution Event
shall not have occurred prior to the effectiveness of such Exchange Offer
Registration Statement and the Company shall not have elected to include the
Junior Subordinated Debt Securities held by the Trust in the Registered
Exchange Offer pursuant to Section 2(g) hereof, with respect to the
distribution of the Junior Subordinated Debt Securities upon the occurrence of
a Distribution Event), and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
3
<PAGE> 4
"Exchange Pass-through Securities" means the Exchange Capital
Securities together with the Exchange Guarantee.
"Exchange Securities" means (i) if a Distribution Event shall
not have occurred prior to the Registered Exchange Offer, (a) the Exchange
Pass-through Securities and (b) if the Company shall elect to include the
Junior Subordinated Debt Securities held by the Trust in the Registered
Exchange Offer pursuant to Section 2(g) hereof, the Exchange Junior
Subordinated Debt Securities or (ii) if a Distribution Event shall have
occurred prior to the Registered Exchange Offer, the Exchange Junior
Subordinated Debt Securities.
"Exchanging Dealer" means any Holder (which may include any
Purchaser) which is a broker-dealer electing to exchange Securities acquired
for its own account as a result of market-making activities or other trading
activities for Exchange Securities.
"Final Memorandum" has the meaning set forth in the Purchase
Agreement.
"Guarantee" means the guarantee by the Company of the Capital
Securities and the Common Securities pursuant to the Guarantee Agreement dated
as of December 31, 1996 between the Company and the Guarantee Trustee.
"Guarantee Trustee", "Indenture Trustee" and "Property
Trustee" each mean Bankers Trust Company, a New York banking corporation.
"Holder" has the meaning set forth in the preamble hereto.
"Junior Subordinated Indenture" means the Junior Subordinated
Indenture relating to the Junior Subordinated Debt Securities and the Exchange
Junior Subordinated Debt Securities dated as of December 31, 1996 between the
Company and the Indenture Trustee.
"Initial Placement" has the meaning set forth in the preamble
hereto.
"Majority Holders" means the Holders of a majority of the
aggregate liquidation amount or of the aggregate
4
<PAGE> 5
principal amount, as applicable, of securities registered under a Registration
Statement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an
underwritten offering.
"Prospectus" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Securities or the Exchange Securities, covered by such Registration
Statement, and all amendments and supplements to the Prospectus, including
post-effective amendments.
"Registered Exchange Offer" means the proposed offer to the
Holders to issue and deliver to such Holders a like liquidation amount or
principal amount, as the case may be, of the Exchange Securities, in exchange
for (i) if a Distribution Event shall not have occurred, (a) the Pass-Through
Securities and (b) if the Company shall elect to include the Junior
Subordinated Debt Securities held by the Trust in the Registered Exchange Offer
pursuant to Section 2(g) hereof, the Junior Subordinated Debt Securities or
(ii) if a Distribution Event shall have occurred, the Junior Subordinated Debt
Securities.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the Exchange Securities pursuant to the provisions of this Agreement, and
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Securities" means (i) if a Distribution Event shall not have
occurred, the Pass-through Securities and the Junior Subordinated Debt
Securities or (ii) if a Distribution Event shall have occurred, the Junior
Subordinated Debt Securities.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
5
<PAGE> 6
"Shelf Registration Period" has the meaning given such term in
Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Trust and the Company pursuant to the provisions of Section 3
hereof which covers some or all of the Securities or the Exchange Securities,
as applicable, on an appropriate form under Rule 415 under the Act, or any
similar rule that may be adopted by the Commission, and amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Tax Contingency" has the meaning given such term in Section
2(b) hereof.
"Tax Contingency Extension" has the meaning given such term in
Section 7(a) hereof.
"Trustee" means the Guarantee Trustee, the Indenture Trustee
or the Property Trustee, as applicable.
"Underwriter" means any underwriter of Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of Exchange Securities
by Exchanging Dealers. (a) The Trust and the Company shall prepare and, not
later than 120 days following the Closing Date, shall file with the Commission
the Exchange Offer Registration Statement. The Trust and the Company shall use
their best efforts to cause the Exchange Offer Registration Statement to become
effective under the Act within 180 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Trust and the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for Exchange Securities
(assuming that such Holder is not an affiliate of the Trust or the Company
within the meaning of the Act, acquires the Exchange Securities in the ordinary
course of such Holder's business and has no arrangements with any person to
participate in the distribution (within the meaning of the Act) of the Exchange
Securities) to transfer such Exchange Securities from and after their receipt
without any
6
<PAGE> 7
limitations or restrictions under the Act and without material restrictions
under the securities laws of a substantial proportion of the several states of
the United States. Notwithstanding the foregoing (but subject to the provisions
of clause (ii) of Section 3 and clause (a)(iii) of Section 7), in the event
that the Company shall determine in good faith that (i) there is a reasonable
likelihood that, or (ii) a material uncertainty exists as to whether,
consummation of the Registered Exchange Offer would result in an adverse tax
consequence to the Trust or the Company (a "Tax Contingency"), the Trust and
the Company may elect to delay commencement or consummation of the Registered
Exchange Offer until such Tax Contingency shall no longer exist or, if the
Company shall determine in good faith that such Tax Contingency is in existence
on the 240th day following the Closing Date, to terminate the Registered
Exchange Offer.
(c) In connection with the Registered Exchange Offer, the
Trust and the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
30 days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law);
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City
of New York; and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Trust and the Company shall:
(i) accept for exchange all Securities validly tendered and
not withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
7
<PAGE> 8
(iii) cause the Trustee promptly to authenticate and deliver
to each Holder of tendered Securities, Exchange Securities equal in
liquidation amount or principal amount, as the case may be, to the
Securities of such Holder so accepted for exchange therefor.
(e) The Purchasers and the Trust and the Company acknowledge
that, pursuant to interpretations by the Commission's staff of Section 5 of the
Act, and in the absence of an applicable exemption therefrom, each Exchanging
Dealer is required to deliver a Prospectus in connection with a sale of any
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer in exchange for Securities acquired for its own
account as a result of market-making activities or other trading activities.
Accordingly, the Trust and the Company shall:
(i) include the information set forth in Annex A hereto on the
cover of the Exchange Offer Registration Statement, in Annex B hereto
in the forepart of the Exchange Offer Registration Statement in a
section setting forth details of the Registered Exchange Offer, and in
Annex C hereto in the underwriting or plan of distribution section of
the Prospectus forming a part of the Exchange Offer Registration
Statement, and include the information set forth in Annex D hereto in
the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; and
(ii) use their best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act during the
Exchange Offer Registration Period for delivery of the Prospectus
forming a part thereof by Exchanging Dealers in connection with sales
of Exchange Securities received pursuant to the Registered Exchange
Offer, as contemplated by Section 4(h) below.
(f) In the event that the Purchasers determine that they are
not eligible to participate in the Registered Exchange Offer with respect to
the exchange of Securities constituting any portion of their initial unsold
allotment, at the request of the Purchasers, the Company shall issue and
deliver to the Purchasers, in exchange for such Securities, a like principal
amount of Exchange Securities (provided that such Exchange Securities shall
include legends with respect to restrictions on transfer), and the Company
shall, starting on the date of effectiveness of the Exchange
8
<PAGE> 9
Offer Registration Statement and ending on the close of business on the 180th
day following such date, make available as many copies of the Exchange Offer
Registration Statement prospectus, as amended or supplemented, as reasonably
requested by the Purchasers. The Trust and the Company shall seek to cause the
CUSIP Service Bureau to issue the same CUSIP number for such Exchange
Securities as for Exchange Securities issued pursuant to the Registered
Exchange Offer. The Purchasers agree to promptly notify the Company in writing
following the resale of their initial allotment of Securities.
(g) Notwithstanding anything in this Agreement to the
contrary, if a Distribution Event shall not have occurred prior to the
Registered Exchange Offer, the Company may offer to, and the Trust shall agree
to, exchange the Junior Subordinated Debt Securities held by the Trust for an
identical principal amount of Exchange Junior Subordinated Debt Securities as
part of the Registered Exchange Offer; provided, however that, until a
Distribution Event shall have occurred, such Exchange Junior Subordinated Debt
Securities shall include appropriate legends with respect to transfer
restrictions.
3. Shelf Registration. If, (i) because of any change in law
or applicable interpretations thereof by the Commission's staff, the Trust and
the Company determine upon advice of their outside counsel that they are not
permitted to effect the Registered Exchange Offer as contemplated by Section 2
hereof, or (ii) for any other reason the Registered Exchange Offer is not
consummated within 225 days (or, if the Company shall determine in good faith
that a Tax Contingency exists on such 225th day, within 240 days) of the
Closing Date, or (iii) in the event that the Purchasers participate in the
Registered Exchange Offer or acquire Exchange Securities pursuant to Section
2(f) hereof and the Purchasers do not receive freely tradeable Exchange
Securities in exchange for Securities constituting any portion of an unsold
allotment (it being understood that, for purposes of this Section 3, (x) the
requirement that the Purchasers deliver a Prospectus containing the information
required by Items 507 and/or 508 of Regulation S-K under the Act in connection
with sales of Exchange Securities acquired in exchange for such Securities
shall result in such Exchange Securities being not "freely tradeable" but (y)
the requirement that an Exchanging Dealer deliver a Prospectus in connection
with sales of Exchange Securities acquired in the Registered Exchange Offer in
exchange for Securities ac-
9
<PAGE> 10
quired as a result of market-making activities or other trading activities
shall not result in such Exchange Securities being not "freely tradeable"), the
following provisions shall apply:
(a) The Trust and the Company shall, as promptly as
practicable (but in no event more than 60 days after so required or requested
pursuant to this Section 3), file with the Commission and thereafter use their
best efforts to cause to be declared effective under the Act a Shelf
Registration Statement relating to the offer and sale of the Securities or the
Exchange Securities, as applicable, by the Holders from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; provided, however, that with
respect to Exchange Securities received by the Purchasers in exchange for
Securities constituting any portion of an unsold allotment, the Trust and the
Company may, if permitted by current interpretations by the Commission's staff,
file a post-effective amendment to the Exchange Offer Registration Statement
containing the information required by Regulation S-K Items 507 and/or 508, as
applicable, in satisfaction of their obligations under this paragraph (a) with
respect thereto, and any such Exchange Offer Registration Statement, as so
amended, shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
(b) The Trust and the Company shall use their best efforts to
keep the Shelf Registration Statement continuously effective in order to permit
the Prospectus forming part thereof to be usable by Holders for a period of (i)
three years (or, if Rule 144(k) is amended to provide a shorter restrictive
period, such shorter period) or (ii) 180 days in the event that the Shelf
Registration Statement is requested by the Purchasers pursuant to Section
3(iii), from the Closing Date or such shorter period that will terminate when
all the Securities or Exchange Securities, as applicable, covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement (in any such case, such period being called the "Shelf Registration
Period").
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<PAGE> 11
4. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent specified, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Trust and the Company shall furnish to each
Purchaser, prior to the filing thereof with the Commission, a copy of
any Shelf Registration Statement and any Exchange Offer Registration
Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein and shall use
their best efforts to reflect in each such document, when so filed
with the Commission, such comments as you reasonably may propose.
(b) The Trust and the Company shall ensure that (i) any
Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto complies
in all material respects with the Act and the rules and regulations
thereunder, (ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming part of any Registration Statement, and
any amendment or supplement to such Prospectus, does not, during the
period when delivery thereof is required, include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements, in the light of the circumstances under which
they were made, not misleading.
(c) (1) The Trust and the Company shall advise the Purchasers
and, in the case of a Shelf Registration Statement, the Holders of
securities covered thereby to the extent specified in (i) below, and,
if requested by you or any such Holder, confirm such advice in
writing:
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Registration
11
<PAGE> 12
Statement or the Prospectus included therein or for additional
information.
(2) The Trust and the Company shall advise the Purchasers
and, in the case of a Shelf Registration Statement, the Holders of
securities covered thereby, and, in the case of an Exchange Offer
Registration Statement, any Exchanging Dealer which has provided in
writing to the Trust and the Company a telephone or facsimile number
and address for notices, and, if requested by you or any such Holder
or Exchanging Dealer, confirm such advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose;
(ii) of the receipt by the Company or the Trust of any
notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the suspension of the use of the Prospectus.
(d) The Trust and the Company shall use their best efforts to
obtain the withdrawal of any order suspending the effectiveness or use
of any Registration Statement at the earliest possible time.
(e) The Trust and the Company shall furnish to each Holder of
securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits (including those incorporated by
reference).
(f) The Trust and the Company shall, during the Shelf
Registration Period, deliver to each Holder of securities included
within the coverage of any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including each preliminary
Prospectus) included in such Shelf Registration Statement and
12
<PAGE> 13
any amendment or supplement thereto as such Holder may reasonably
request; and the Trust and the Company consent to the use of the
Prospectus or any amendment or supplement thereto as to which no
notice has been given pursuant to paragraph 4(c)(2) by each of the
selling Holders of securities in connection with the offering and sale
of the securities covered by the Prospectus or any amendment or
supplement thereto.
(g) The Trust and the Company shall furnish to each
Exchanging Dealer which so requests, without charge, at least one copy
of the Exchange Offer Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, any
documents incorporated by reference therein, and, if the Exchanging
Dealer so requests in writing, all exhibits (including those
incorporated by reference).
(h) The Trust and the Company shall, during the Exchange
Offer Registration Period, promptly deliver to each Exchanging Dealer,
without charge, as many copies of the Prospectus included in such
Exchange Offer Registration Statement and any amendment or supplement
thereto as such Exchanging Dealer may reasonably request for delivery
by such Exchanging Dealer in connection with a sale of Exchange
Securities received by it pursuant to the Registered Exchange Offer;
and the Trust and the Company consent to the use of the Prospectus or
any amendment or supplement thereto as to which no notice has been
given pursuant to paragraph 4(c)(2) by any such Exchanging Dealer, as
aforesaid.
(i) Prior to the Registered Exchange Offer or the
effectiveness of a Registration Statement with respect to any other
offering of securities, the Trust and the Company shall, if required
by applicable law, register or qualify or cooperate with the Holders
of securities included therein and their respective counsel in
connection with the registration or qualification of such securities
for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Holders reasonably request in writing and do
any and all other acts or things necessary or advisable to enable the
offer and sale in such United States jurisdictions of the securities
covered by such Registration Statement; provided, however, that
neither the Trust nor the Company will be required to qualify
generally to do business in any jurisdiction where it is not then so
13
<PAGE> 14
qualified or to take any action which would subject it to general
service of process or to taxation in any such jurisdiction where it is
not then so subject.
(j) Unless the applicable securities shall be in book-entry
only form, the Trust and the Company shall cooperate with the Holders
of Securities to facilitate the timely preparation and delivery of
certificates representing Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request
prior to sales of securities pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by
paragraphs c(1)(ii) or (c)(2)(iii) above, the Trust and the Company
shall prepare as soon as possible a post-effective amendment to any
Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter
delivered to purchasers of the securities included therein, the
Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(l) The Trust and the Company shall use their best efforts to
cause The Depository Trust Company ("DTC") on the first business day
following the effective date of any Shelf Registration Statement
hereunder or as soon as possible thereafter to remove (i) from any
existing CUSIP number assigned to the Pass-through Securities or
Junior Subordinated Debt Securities, as the case may be, any
designation indicating that such securities are "restricted
securities", which efforts shall include delivery to DTC of a letter
executed by the Trust and the Company substantially in the form of
Annex E hereto and (ii) any other stop or restriction on DTC's system
with respect to such securities. In the event the Trust and the
Company are unable to cause DTC to take the actions described in the
immediately preceding sentence, the Company shall take such actions as
Salomon Brothers Inc may reasonably request to provide, as soon as
practicable, a CUSIP number for the Pass-through Securities or Junior
Subordinated Debt Securities, as the case may be, registered under
such Registration Statement and to cause such CUSIP number
14
<PAGE> 15
to be assigned to such securities (or to the maximum aggregate
principal amount of such securities to which such number may be
assigned). Upon compliance with the foregoing requirements of this
Section 4(l), the Trust and the Company shall provide the Trustee with
printed certificates for such securities, in a form eligible for
deposit with DTC.
(m) The Trust and the Company shall use their best efforts to
comply with all applicable rules and regulations of the Commission and
shall make generally available to its security holders as soon as
practicable after the effective date of the applicable Registration
Statement an earnings statement satisfying the provisions of Section
11(a) of the Act.
(n) The Trust and the Company shall cause the Junior
Subordinated Indenture, the Declaration and the Guarantee to be
qualified under the Trust Indenture Act in a timely manner.
(o) The Trust and the Company may require each Holder of
securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Trust and the Company such information regarding such
Holder and the distribution of such securities by such Holder as the
Trust and the Company may from time to time reasonably require for
inclusion in such Registration Statement, and securities of a holder
which does not provide information necessary for inclusion in such
Registration Statement may be omitted from any Shelf Registration
Statement.
(p) The Trust and the Company shall, if reasonably requested,
and in no event more than three times, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf
Registration Statement, such information as the Managing Underwriters
and Majority Holders reasonably agree should be included therein and
shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment.
(q) In the case of any Shelf Registration Statement, the
Trust and the Company shall enter into such agreements (including
underwriting agreements) and take all other appropriate actions in
order to expedite or
15
<PAGE> 16
facilitate the registration or the disposition of the Securities or
the Exchange Securities, as the case may be, and in connection
therewith, if an underwriting agreement is entered into, cause the
same to contain indemnification provisions and procedures no less
favorable than those set forth in Section 6 (or such other provisions
and procedures acceptable to the Majority Holders and the Managing
Underwriters, if any) with respect to all parties to be indemnified
pursuant to Section 6.
(r) In the case of any Shelf Registration Statement, the
Trust and the Company shall (i) make reasonably available for
inspection by the Holders of securities to be registered thereunder,
subject to their acceptance of the provisions of this Section 4(r),
any underwriter participating in any distribution pursuant to such
Registration Statement, and any attorney, accountant or other agent
retained by the Holders or any such underwriter all relevant financial
and other records, pertinent corporate documents and properties of the
Trust or the Company and its subsidiaries as shall reasonably be
required in connection with the discharge of their due diligence
obligations; (ii) cause the Company's officers, directors and
employees and any relevant trustee to supply all relevant information
reasonably requested by the Holders or any such underwriter, attorney,
accountant or agent in connection with any such Registration Statement
as is customary for similar due diligence examinations; provided,
however, that, in the case of clause (i) and (ii) above, any
information that is designated in writing by the Trust or the Company,
in good faith, as confidential at the time of delivery of such
information shall be kept confidential by the Holders and any such
underwriter, attorney, accountant or agent, unless such disclosure is
made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality; and
provided further, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Holders
and the other parties entitled thereto by one counsel designated by
and on behalf of such Holders and other parties; (iii) make such
representations and warranties to the Holders of securities registered
thereunder and the underwriters, if any, in form, substance and scope
as
16
<PAGE> 17
are customarily made by issuers to underwriters in primary
underwritten offerings and covering such matters as are customarily
covered in representations and warranties requested in primary
underwritten offerings; (iv) obtain opinions of counsel to the Trust
and the Company and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling Holder and
the underwriters, if any, covering such matters and with such
exceptions as are customarily covered or taken in opinions requested
in underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters (it being agreed that the
matters to be covered by such counsel shall include, without
limitation, as of the date of the opinions and as of the effective
date of the Registration Statement or most recent post-effective
amendment thereto, as the case may be, a statement by such counsel
regarding the absence from such Registration Statement and the
Prospectus included therein, as then amended or supplemented,
including the documents incorporated by reference therein, of an
untrue statement of a material fact or the omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading); (v) obtain "cold comfort" letters
and updates thereof from the independent certified public accountants
of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Registration
Statement), addressed to each selling Holder of securities registered
thereunder and the underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings; and (vi)
deliver such documents and certificates as may be reasonably requested
by the Majority Holders and the Managing Underwriters, if any,
including those to evidence compliance with Section 4(k) and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Trust and the Company. The foregoing
actions set forth in clauses (iii), (iv), (v) and (vi) of this Section
4(r) shall be performed at (A) the effectiveness of such Registration
Statement and each post-effective amendment thereto and (B) each
closing under
17
<PAGE> 18
any underwriting or similar agreement as and to the extent required
thereunder.
(s) In the case of any Exchange Offer Registration Statement,
if requested by the Purchasers, the Trust and the Company shall (i)
make reasonably available for inspection by the Purchasers, and any
attorney, accountant or other agent retained by the Purchasers, all
relevant financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries or the Trust as
shall reasonably be required in connection with the discharge of their
due diligence obligations; (ii) cause the Company's officers,
directors and employees and any relevant trustee to supply all
relevant information reasonably requested by the Purchasers or any
such attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence
examinations; provided, however, that, in the case of clause (i) and
(ii) above, any information that is designated in writing by the
Company or the Trust, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the
Purchasers and any such attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or required
by law, or such information becomes available to the public generally
or through a third party without an accompanying obligation of
confidentiality; (iii) make such representations and warranties to the
Purchasers, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings and covering
such matters; (iv) obtain opinions of counsel to the Trust and the
Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the
Purchasers and their counsel, addressed to the Purchasers, covering
such matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by the Purchasers or their counsel (it being agreed that the
matters to be covered by such counsel shall include, without
limitation, as of the date of the opinions and as of the effective
date of the Registration Statement or most recent post-effective
amendment thereto, as the case may be, a statement by such counsel
regarding the absence from such Registration Statement and the
Prospectus included therein, as then amended or supple-
18
<PAGE> 19
mented, including the documents incorporated by reference therein, of
an untrue statement of a material fact or the omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading); (v) obtain "cold comfort"
letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the
Registration Statement), addressed to the Purchasers, in customary
form and covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten offerings, or
if requested by the Purchasers or their counsel in lieu of a "cold
comfort" letter, an agreed-upon procedures letter under Statement on
Auditing Standards No. 35, covering matters requested by the
Purchasers or their counsel; and (vi) deliver such documents and
certificates as may be reasonably requested by the Purchasers or their
counsel, including those to evidence compliance with Section 4(k) and
with conditions customarily contained in underwriting agreements. The
foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of
this Section 4(s) shall be performed, if requested by the Purchasers,
at the closing of the Registered Exchange Offer and the effective date
of any post-effective amendment to the Exchange Offer Registration
Statement.
5. Registration Expenses. The Trust and the Company shall
bear all expenses incurred in connection with the performance of their
obligations under Sections 2, 3 and 4 hereof and, in the event of any Shelf
Registration Statement, will reimburse the Holders for the reasonable fees and
disbursements of one firm or counsel designated by the Majority Holders to act
as counsel for the Holders in connection therewith, and, in the case of any
Exchange Offer Registration Statement, will reimburse the Purchasers for the
reasonable fees and disbursements of counsel acting in connection therewith.
6. Indemnification and Contribution. (a) In connection with
any Registration Statement, the Company agrees to indemnify and hold harmless
each Holder of securities covered thereby (including any Purchaser and, with
respect to any Prospectus delivery as contemplated in Sec-
19
<PAGE> 20
tion 4(h) hereof, each Exchanging Dealer), the directors, officers, employees
and agents of each such Holder and each person who controls any such Holder
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement as originally filed or
in any amendment thereof, or in any preliminary Prospectus or Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that (i) the Company will not be liable in any case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Trust and the Company by or on behalf of any such
Holder specifically for inclusion therein and (ii) such indemnity with respect
to any untrue statement or omission in any preliminary Prospectus relating to a
Shelf Registration Statement shall not inure to the benefit of any Holder from
whom the person asserting any such loss, claim, damage or liability purchased
the securities that are the subject thereof, to the extent that any such loss,
claim, damage or liability of such Holder occurs under the circumstances where
it shall have been determined by a court of competent jurisdiction by final and
nonappealable judgment that (w) the Trust and the Company had previously
furnished copies of the final Prospectus to such Holder, (x) delivery of the
final Prospectus was required by the Act to be made to such person, (y) the
untrue statement or omission of a material fact contained in the preliminary
Prospectus was completely corrected in the final Prospectus and (z) there was
not sent or given to such person, at or prior to the written confirmation of
the sale of such securities to such person, a copy of the final Prospectus.
This indemnity
20
<PAGE> 21
agreement will be in addition to any liability which the Trust and the Company
may otherwise have.
The Company also agrees to indemnify or contribute to Losses
(as defined below) of, as provided in Section 6(d), any underwriters of
securities registered under a Shelf Registration Statement, their officers and
directors and each person who controls such underwriters on substantially the
same basis as that of the indemnification of the Purchasers and the selling
Holders provided in this Section 6(a) and shall, if requested by any
underwriter, enter into an underwriting agreement reflecting such agreement, as
provided in Section 4(q) hereof.
(b) Each Holder of securities covered by a Registration
Statement (including the Purchasers and, with respect to any Prospectus
delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer) shall
be required to severally agree to indemnify and hold harmless (i) the Trust and
the Company, (ii) each of the Company's directors, (iii) each of the Company's
officers or any trustee who signs such Registration Statement and (iv) each
person who controls the Company or the Trust within the meaning of either the
Act or the Exchange Act to the same extent as the foregoing indemnity from the
Company to each such Holder, but only with reference to written information
relating to such Holder furnished to the Trust or the Company by or on behalf
of such Holder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above or
paragraph (d) below unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
obligations provided under this Section 6. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's
21
<PAGE> 22
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel) (it being understood that the indemnifying party shall not be
liable for the fees, costs and expenses of more than one separate counsel (and,
to the extent necessary, one local counsel in each jurisdiction)), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel (and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses,
22
<PAGE> 23
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending the same) (collectively
"Losses") to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement which resulted in such Losses.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on
the one hand, and such indemnified party, on the other hand, in connection with
the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Trust and the
Company shall be deemed to be equal to the total net proceeds from the Initial
Placement (before deducting expenses) as set forth on the cover page of the
Final Memorandum. Benefits received by the Purchasers shall be deemed to be
equal to the total purchase discounts, commissions or compensation as set
forth on the cover page of the Final Memorandum, and benefits received by any
other Holders shall be deemed to be equal to the excess, if any, of the value
to such Holder of receiving Securities or Exchange Securities, as applicable,
registered under the Act over the value to such Holder of holding Securities
not registered under the Act. Benefits received by any underwriter shall be
deemed to be equal to the total underwriting discounts and commissions, as set
forth on the cover page of the Prospectus forming a part of the Registration
Statement which resulted in such Losses. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand. The parties agree that it would not be
just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 6, each person who controls a Holder within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of such Holder shall
23
<PAGE> 24
have the same rights to contribution as such Holder, and each person who
controls the Company or the Trust within the meaning of either the Act or the
Exchange Act, each officer of the Company and each trustee of the Trust who
shall have signed the Registration Statement and each director of the Company
and each trustee of the Trust shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The provisions of this Section 6 will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Holder, the Company or the Trust or any of the officers, directors, trustees or
controlling persons referred to in Section 6 hereof, and will survive the sale
by a Holder of securities covered by a Registration Statement.
7. Liquidated Damages and Additional Distributions Under
Certain Circumstances. (a) Liquidated damages ("Liquidated Damages") shall
become payable in respect of the Junior Subordinated Debt Securities (including
in respect of amounts accruing during any Extension Period (as defined in the
Junior Subordinated Indenture)), and corresponding additional distributions
(the "Additional Distributions") shall become payable on the Capital Securities
as follows if any of the following events occur (each such event in clauses (i)
through (iv) below, a "Registration Default"):
(i) if the Exchange Offer Registration Statement is not filed
with the Commission on or prior to the 120th day following the Closing Date;
(ii) if the Exchange Offer Registration Statement is not
declared effective on or prior to the 180th day following the Closing Date;
(iii) if the Registered Exchange Offer is not consummated or
the Shelf Registration Statement is not declared effective on or prior to the
225th day (or, if the Company shall determine in good faith that a Tax
Contingency exists on such 225th day, the 240th day (a "Tax Contingency
Extension")) following the Closing Date; or
(iv) if, after the 225th day (or in the case of a Tax
Contingency Extension, the 240th day) following the Closing Date, and after the
Shelf Registration Statement is
24
<PAGE> 25
declared effective, (A) such Shelf Registration Statement ceases to be
effective prior to the end of the Shelf Registration Period (except as
permitted in paragraph (b) of this Section 7); or (B) such Shelf Registration
Statement or the related Prospectus ceases to be useable in connection with
resales of Securities or Exchange Securities, as the case may be, covered by
such Shelf Registration Statement prior to the end of the Shelf Registration
Period (except as permitted in paragraph (b) of this Section 7) because either
(1) any event occurs as a result of which the related Prospectus forming part
of such Shelf Registration Statement would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading or (2) it shall be necessary to amend such Shelf Registration
Statement, or supplement the related Prospectus, to comply with the Securities
Act or the Exchange Act or the respective rules thereunder.
Liquidated Damages and Additional Distributions shall accrue
on the Junior Subordinated Debt Securities and the Capital Securities,
respectively, over and above the interest rate or distribution rate, as the
case may be, set forth in the title to the Junior Subordinated Debt Securities
and the Capital Securities following the occurrence of each Registration
Default set forth in clauses (i), (ii), (iii) and (iv) above from and including
the next day following each such Registration Default, in each case at a rate
equal to 0.25% per annum; provided, however, that the aggregate amount of
Liquidated Damages and Additional Distributions, respectively, payable pursuant
this Section 7(a) will in no event exceed 0.25% per annum. The Liquidated
Damages and the Additional Distributions attributable to each Registration
Default shall cease to accrue from the date such Registration Default is cured.
(b) A Registration Default referred to in Section 7(a)(iv)
shall be deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related Prospectus or (y) the occurrence of other material
events or developments with respect to the Trust or the Company that would need
to be
25
<PAGE> 26
described in such Registration Statement or the related Prospectus and (ii) in
the case of clause (y), the Trust and the Company are proceeding promptly and
in good faith to amend or supplement such Registration Statement and related
Prospectus to describe such events; provided, however, that in any case, if
such Registration Default occurs for a continuous period in excess of 45 days,
Liquidated Damages and Additional Distributions shall be payable in accordance
with the above paragraph from the first day of such 45-day period until the
date on which such Registration Default is cured.
(c) Any amounts of Liquidated Damages and Additional
Distributions due pursuant to the foregoing paragraphs will be payable in cash
on June 15 and December 15 each year to the holders of record on the preceding
June 1 and December 1, respectively.
8. Miscellaneous.
(a) No Inconsistent Agreements. Each of the Trust and the
Company has not, as of the date hereof, entered into, nor shall it, on
or after the date hereof, enter into, any agreement with respect to
the Securities that is inconsistent with the rights granted to the
Holders herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, qualified, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the
Trust and the Company have obtained the written consent of the Holders
of at least a majority of the then outstanding aggregate liquidation
amount or principal amount, as the case may be, of Securities (or,
after the consummation of any Exchange Offer in accordance with
Section 2 hereof, of Exchange Securities); provided, however, that,
with respect to any matter that affects the rights of any Purchaser
hereunder, the Trust and the Company shall obtain the written consent
of the Purchasers. Notwithstanding the foregoing (except the
foregoing proviso), a waiver or consent to departure from the
provisions hereof with respect to a matter that relates exclusively to
the rights of Holders whose securities are being sold pursuant to a
Registration Statement and that does not directly or
26
<PAGE> 27
indirectly affect the rights of other Holders may be given by the
Majority Holders, determined on the basis of securities being sold
rather than registered under such Registration Statement.
(c) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(1) if to a Holder, at the most current address given
by such holder to the Company in accordance with the
provisions of this Section 8(c), which address initially is,
with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture, with a copy
in like manner to Salomon Brothers Inc;
(2) if to you, initially at the address set forth in
the Purchase Agreement; and
(3) if to the Company or the Trust, initially at the
address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Purchasers, the Trust or the Company by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent
by the Company or the Trust thereto, subsequent Holders of Securities and/or
Exchange Securities. The Trust and the Company hereby agree to extend the
benefits of this Agreement to any Holder of Securities and/or Exchange
Securities and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(e) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall
27
<PAGE> 28
be deemed to be an original and all of which taken together shall constitute
one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State.
(h) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Trust or the Company, etc.
Whenever the consent or approval of Holders of a specified percentage of
liquidation amount or principal amount, as the case may be, of Securities or
Exchange Securities is required hereunder, Securities or Exchange Securities,
as applicable, held by the Trust or the Company or their respective Affiliates
(other than subsequent Holders of Securities or Exchange Securities if such
subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such Securities or Exchange Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
28
<PAGE> 29
Please confirm that the foregoing correctly sets forth the
agreement among the Trust, the Company and you.
Very truly yours,
NORTH FORK CAPITAL TRUST I,
by:
---------------------------
Name:
Title:
NORTH FORK BANCORPORATION, INC.,
by:
---------------------------
Name:
Title:
Accepted in New York, New York
December 31, 1996
SALOMON BROTHERS INC
KEEFE, BRUYETTE & WOODS, INC.
by SALOMON BROTHERS INC
by:
-------------------------
Name:
Title:
29
<PAGE> 30
ANNEX A
Annex A
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Trust and the
Company have agreed that, ending on the close of business on the 180th day
following the Expiration Date (as defined herein), it will make this Prospectus
available to any broker-dealer for use in connection with any such resale. See
"Plan of Distribution".
<PAGE> 31
ANNEX B
Annex B
Each broker-dealer that receives Exchange Securities for its
own account in exchange for Securities, where such Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
<PAGE> 32
ANNEX C
Plan of Distribution
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Securities where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Trust and the Company have agreed that, starting on the
Expiration Date and ending on the close of business on the 180th day following
the Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until , 199 , all dealers effecting transactions in the
Exchange Securities may be required to deliver a prospectus.
The Trust and the Company will not receive any proceeds from
any sale of Exchange Securities by broker-dealers. Exchange Securities
received by broker-dealers for their own account pursuant to the Exchange Offer
may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Securities or a combination of such methods of resale,
at market prices prevailing at the time of resale, at prices related to such
prevailing market prices or at negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were received by it for its
own account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit of any
such resale of Exchange Securities and any commissions or concessions received
by any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that by acknowledging that it
will deliver and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
<PAGE> 33
For a period of 180 days after the Expiration Date, the Trust
and the Company will promptly send additional copies of this Prospectus and
any amendment or supplement to this Prospectus to any broker-dealer that
requests such documents in the Letter of Transmittal. The Trust and the
Company have agreed to pay all expenses incident to the Exchange Offer
(including the expenses of one counsel for the holders of the Securities) other
than commissions or concessions of any brokers or dealers and will indemnify
the holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K
Items 507 and/or 508.]
2
<PAGE> 34
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
---------------------------------------------
Address:
-----------------------------------------
-----------------------------------------
Rider B
If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Securities. If the undersigned is a broker-dealer
that will receive Exchange Securities for its own account in exchange for
Securities, it represents that the Securities to be exchanged for Exchange
Securities were acquired by it as a result of market-making activities or other
trading activities and acknowledges that it will deliver a prospectus in
connection with any resale of such Exchange Securities; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.
<PAGE> 35
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
North Fork Capital Trust I
North Fork Bancorporation, Inc.
275 Broad Hollow Road
Melville, NY 11747
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, NY 10004
Re: 8.70% Capital Trust Pass-through Securities(SM)
(TRUPSSM) (the "Securities") of North Fork Capital
Trust I, fully and unconditionally guaranteed by
North Fork Bancorporation, Inc.
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission
has declared effective a Registration Statement on Form S-3 under the
Securities Act of 1933 with regard to all of the Securities referenced above.
Accordingly, there is no longer any restriction as to whom such Securities may
be sold and any restrictions on the CUSIP designation are no longer appropriate
and may be removed. I understand that upon receipt of this letter, DTC will
remove any stop or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of
further assistance.
NORTH FORK CAPITAL TRUST I,
by:
--------------------------
Authorized Officer
NORTH FORK BANCORPORATION, INC.,
by:
--------------------------
Authorized Officer
<PAGE> 1
EXHIBIT 12.1
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
(Excluding Interest on Deposits)
The Corporation's ratios of earnings to fixed charges (excluding interest on
deposits) for the five years ended December 31, 1996 were as follows:
<TABLE>
<CAPTION>
(dollars in thousands) Years Ended December 31,
-----------------------------------------------------
1996 1995 1994 1993 1992
-------- -------- ------- ------- --------
<S> <C> <C> <C> <C> <C>
Net income .......................... $ 62,442 $ 67,342 $43,039 $ 9,867 $14,498
Income tax expense .................. 49,830 49,850 26,502 13,015 14,378
-------- -------- ------- ------- -------
Pretax earnings ................... $112,272 $117,192 $69,541 $22,882 $28,876
======== ======== ======= ======= =======
Fixed charges:
Portion of rental expense (net
of sublease rental income)
which approximates the
interest factor ................... $ 1,166 $ 833 $ 799 $ 709 $ 721
Interest on borrowed funds .......... 37,923 23,923 19,937 11,925 10,032
-------- -------- ------- ------- -------
Total fixed charges ............... $ 39,089 $ 24,756 $20,736 $12,634 $10,753
======== ======== ======= ======= =======
Earnings (for ratio calculation)..... $151,361 $141,948 $90,277 $35,516 $39,629
======== ======== ======= ======= =======
Ratio of earnings to fixed charges .. 3.87 5.73 4.35 2.81 3.69
======== ======== ======= ======= =======
</TABLE>
For purposes of computing the ratios of earnings to fixed charges, earnings
represent net income before income taxes plus fixed charges. Fixed charges
excluding interest on deposits consist of interest on long-term debt and
short-term borrowings and one-third of rental expense (which is deemed
representative of the interest factor). Fixed charges including interest on
deposits consist of the foregoing items plus interest on deposits.
<PAGE> 1
EXHIBIT 12.2
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
(Including Interest on Deposits)
The Corporation's ratios of earnings to fixed charges (including interest on
deposits) for the five years ended December 31, 1996 were as follows:
<TABLE>
<CAPTION>
(dollars in thousands) Years Ended December 31,
-----------------------------------------------------------------------
1996 1995 1994 1993 1992
-------- -------- -------- ------- --------
<S> <C> <C> <C> <C> <C>
Net income .......................... $ 62,442 $ 67,342 $ 43,039 $ 9,867 $ 14,498
Cumulative effect of changes in
accounting principles,
net of tax ...................... $ $ $ $ $
Income tax expense................... 49,830 49,850 26,502 13,015 14,378
-------- -------- -------- -------- --------
Pretax earnings.................. $112,272 $117,192 $ 69,541 $ 22,882 $ 28,876
======== ======== ======== ======== ========
Fixed charges:
Portion of rental expense (net of
sublease rental income) which
approximates the interest
factor............................. $ 1,116 $ 833 $ 799 $ 709 $ 721
Interest on borrowed funds........... 37,923 23,923 19,937 11,925 10,032
Interest on deposits................. 136,438 116,476 92,639 105,228 165,905
-------- -------- -------- -------- --------
Total fixed charges.............. $175,527 $141,232 $113,375 $117,862 $176,658
======== ======== ======== ======== ========
Earnings (for ratio calculation)..... $287,799 $258,424 $182,916 $140,774 $205,534
======== ======== ======== ======== ========
Ratio of earnings to fixed charges... 1.64 1.83 1.61 1.19 1.16
======== ======== ======== ======== ========
</TABLE>
For purposes of computing the ratios of earnings to fixed charges, earnings
represent net income before income taxes plus fixed charges. Fixed charges
excluding interest on deposits consist of interest on long-term debt and
short-term borrowings and one-third of rental expense (which is deemed
representative of the interest factor). Fixed charges including interest on
deposits consist of the foregoing items plus interest on deposits.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
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 the prospectus. 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
March 27, 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 10006
NEW YORK, NEW YORK (Zip Code)
(Address of principal
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)
------------------------------
NORTH FORK BANCORPORATION, INC. NORTH FORK CAPITAL TRUST I
(Exact name of Registrant as (Exact name of Registrant as
specified in its charter) specified in its charter)
DELAWARE 11-1353410 DELAWARE 11-3355569
(State or other (I.R.S. employer (State or other (I.R.S. employer
jurisdiction of Identification jurisdiction of Identification
Incorporation or no.) incorporation or no.)
organization) organization)
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)
EXCHANGE CAPITAL TRUST PASS-THROUGH SECURITIES OF NORTH FORK CAPITAL TRUST I
EXCHANGE JUNIOR SUBORDINATED DEBT SECURITIES OF NORTH FORK BANCORPORATION, INC.
NORTH FORK BANCORPORATION, INC. EXCHANGE GUARANTEE
WITH RESPECT TO EXCHANGE CAPITAL TRUST PASS-THROUGH 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, and Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated March 20, 1996, 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 January 21, 1997 - Incorporated herein by reference
to Exhibit 4 filed with Form T-1 Statement, Registration
No. 333-20111.
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 -- A copy of the latest report of condition of Bankers Trust Company
dated as of December 31, 1996.
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 24th day
of March, 1997.
BANKERS TRUST COMPANY
By: /s/ Kevin Weeks
--------------------------
Kevin Weeks
Assistant Treasurer
4
<PAGE> 5
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 24th day of March, 1997.
BANKERS TRUST COMPANY
By: /s/ Kevin Weeks
----------------------------------
Kevin Weeks
Assistant Treasurer
5
<PAGE> 6
<TABLE>
<S> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/96 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
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS DECEMBER 31, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
----------------
C400
--------------------------------
DOLLAR AMOUNTS IN THOUSANDS RCFD BIL MIL THOU
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS //////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): //////////////////
a. Noninterest-bearing balances and currency and coin (1)................... 0081 1,545,000 1.a.
b. Interest-bearing balances (2)............................................ 0071 2,494,000 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 4,368,000 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: //////////////////
a. Federal funds sold....................................................... 0276 3,651,000 3.a.
b. Securities purchased under agreements to resell.......................... 0277 3,230,000 3.b.
4. Loans and lease financing receivables: //////////////////
a. Loans and leases, net of unearned income //////////////////
(from Schedule RC-C).......................... RCFD 2122 27,239,000 ////////////////// 4.a.
b. LESS: Allowance for loan and lease losses....... RCFD 3123 917,000 ////////////////// 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 28,889,000 4.d.
5. Assets held in trading accounts.............................................. 3545 38,272,000 5.
6. Premises and fixed assets (including capitalized leases)..................... 2145 914,000 6.
7. Other real estate owned (from Schedule RC-M)................................. 2150 213,000 7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M)............................................................... 2130 184,000 8.
9. Customers' liability to this bank on acceptances outstanding................. 2155 597,000 9.
10. Intangible assets (from Schedule RC-M)....................................... 2143 17,000 10.
11. Other assets (from Schedule RC-F)............................................ 2160 6,056,000 11.
12. Total assets (sum of items 1 through 11)..................................... 2170 90,430,000 12.
----------------------------------
</TABLE>
- -------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
6
<PAGE> 7
Legal Title of Bank: Bankers Trust Company
Address: 130 Liberty Street
City, State Zip: New York, NY 10006
12
FDIC Certificate No.: /0/0/6/2/3
Call Date: 12/31/96 ST-BK: 36-4840 FFIEC 031
Vendor ID: D CERT: 00623 Page RC-2
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS //////// BIL MIL THOU
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
LIABILITIES /////////////////////////
13. Deposits: ////////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) RCON 2200 11,985,000 13.a.
(1) Noninterest-bearing(1)...............RCON 6631 2,734,000 //////////////////////// 13.a.(1)
(2) Interest-bearing.....................RCON 6636 6,657,000 //////////////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E ////////////////////////
part II) RCFN 2200 21,619,000 13.b.
(1) Noninterest-bearing..................RCFN 6631 654,000 //////////////////////// 13.b.(1)
(2) Interest-bearing.....................RCFN 6636 22,731,000 //////////////////////// 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase in ////////////////////////
domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs: ////////////////////////
a. Federal funds purchased.......................................................... RCFD 0278 6,560,000 14.a.
b. Securities sold under agreements to repurchase................................... RCFD 0279 120,000 14.b.
15. a. Demand notes issued to the U.S. Treasury......................................... RCON 2840 0 15.a.
b. Trading liabilities.............................................................. RCFD 3548 19,172,000 15.b.
16. Other borrowed money: ////////////////////////
a. With original maturity of one year or less....................................... RCFD 2332 15,909,000 16.a.
b. With original maturity of more than one year..................................... RCFD 2333 3,097,000 16.b.
17. Mortgage indebtedness and obligations under capitalized leases....................... RCFD 2910 31,000 17.
18. Bank's liability on acceptances executed and outstanding.............................. RCFD 2920 597,000 18.
19. Subordinated notes and debentures.................................................... RCFD 3200 1,229,000 19.
20. Other liabilities (from Schedule RC-G)............................................... RCFD 2930 5,235,000 20.
21. Total liabilities (sum of items 13 through 20)....................................... RCFD 2948 85,554,000 21.
////////////////////////
22. Limited-life preferred stock and related surplus..................................... RCFD 3282 0 22.
EQUITY CAPITAL ////////////////////////
23. Perpetual preferred stock and related surplus........................................ RCFD 3838 600,000 23.
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 3,131,000 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities........... RCFD 8434 ( 14,000) 26.b.
27. Cumulative foreign currency translation adjustments.................................. RCFD 3284 ( 382,000) 27.
28. Total equity capital (sum of items 23 through 27).................................... RCFD 3210 4,876,000 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of items ////////////////////////
21, 22, and 28)...................................................................... RCFD 3300 90,430,000 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 Number
independent external auditors as of any date during 1995.......................... RCFD 6724 N/A M.1
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm
which submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm 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)
4 = Directors' examination of the bank performed by other external
auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ---------------
(1) Including total demand deposits and noninterest-bearing time and
savings deposits.
7
<PAGE> 8
State of New York,
BANKING DEPARTMENT
I, PETER M. PHILBIN, Deputy Superintendent of Bank 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 March 20, 1996, providing for an
increase in authorized capital stock from $1,351,666,670 consisting of
85,166,667 shares with a par value of $10 each designated as Common Stock and
500 shares with a par value of $1,000,000 each designated as Series Preferred
Stock to $1,501,666,670 consisting of 100,166,667 shares with a par value of
$10 each designated as Common Stock and 500 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 21st day of March in the Year of our Lord one
thousand nine hundred and ninety-six.
/s/ Peter M. Philbin
------------------------------
Deputy Superintendent of Banks
8
<PAGE> 9
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, Three Hundred Fifty One Million, Six Hundred
Sixty-Six Thousand, Six Hundred Seventy Dollars ($1,351,666,670),
divided into Eighty-Five Million, One Hundred Sixty-Six Thousand, Six
Hundred Sixty-Seven (85,166,667) shares with a par value of $10 each
designated as Common Stock and 500 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 One Billion, Five Hundred One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,501,666,670), 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 500 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred Stock."
9
<PAGE> 10
6. 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 20th
day of March, 1996.
/s/ James T. Byrne, Jr.
-------------------------------
James T. Byrne, Jr.
Managing Director
/s/ 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.
/s/ Lea Lahtinen
-------------------------------
Lea Lahtinen
Sworn to before me this 20th day
of March 1996.
/s/ Sandra L. West
- --------------------------------
Notary Public
SANDRA L. WEST Counterpart filed in the
Notary Public State of New York Office of the Superintendent of
No. 31-4942101 Banks, State of New York
Qualified in New York County This 21st day of March, 1996
Commission Expires September 19, 1996
10
