As filed with the Securities and Exchange Commission on September 19, 1997
Registration Nos. 333-34675 and 333-34675-01
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
NEW YORK BANCORP INC. NEW YORK BANCORP CAPITAL TRUST
(Exact name of registrant as specified (Exact name of registrant as specified
in its Charter in its Declaration of Trust)
Delaware Delaware
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
6035
(Primary standard industrial (Primary standard industrial
classification code number) classification code number)
11-2869250 APPLIED FOR
(l.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
C/O NEW YORK BANCORP INC.
241-02 NORTHERN BOULEVARD 241-02 NORTHERN BOULEVARD
DOUGLASTON, NEW YORK 11362 DOUGLASTON, NEW YORK 11362
(718) 631-8100 (718) 631-8100
(Address, Including Zip Code, and (Address, Including Zip Code, and
Telephone Number, Including Area Code, Telephone Number, Including Area Code,
of Registrant's Principal of Registrant's Principal
Executive Offices) Executive Offices)
Michael A. McManus, Jr.
President and Chief Executive Officer
New York Bancorp Inc.
241-02 Northern Boulevard
Douglaston, New York 11362
(718) 631-8100
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
----------
Dennis J. Block, Esq. Frank M. Conner, III, Esq.
Weil, Gotshal & Manges LLP Alston & Bird LLP
767 Fifth Avenue 601 Pennsylvania Avenue, N.W.
New York, New York 10153 North Building, Suite 250
(212) 310-8000 Washington, D.C. 20004-2601
(202) 508-3300
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or reinvestment plans, please check the following box. [ ]
If any of the securities being registered on the Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered in connection with dividend or interest
reinvestment plans, please check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
-------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE OR 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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
NYFS10...:\81\65281\0001\1819\REG8157R.28F
<PAGE>
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 securuties laws of any such state.
SUBJECT TO COMPLETION, DATED SEPTEMBER 19, 1997
SUBSCRIPTION OFFERING
PROSPECTUS
2,000,000 CAPITAL SECURITIES
NEW YORK BANCORP CAPITAL TRUST
8.00% CONVERTIBLE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
NEW YORK BANCORP INC.
The 8.00% Convertible Trust Preferred Securities (the "Capital Securities")
offered hereby represent preferred undivided beneficial interests in the assets
of New York Bancorp Capital Trust, a statutory business trust created under the
laws of the State of Delaware (the "Trust"). New York Bancorp Inc., a Delaware
corporation ("NYB" or the "Company"), will be the owner of all the beneficial
interests represented by the common securities of the Trust (the "Common
Securities" and, together with the Capital Securities, the "Trust Securities").
The Trust exists for the sole purpose of issuing the Trust Securities and
investing the proceeds thereof in 8.00% Junior Convertible Subordinated
Debentures (the "Junior Subordinated Debentures") to be issued by NYB. The
Junior Subordinated Debentures will mature on October 31, 2027 (the "Stated
Maturity Date"). 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
Capital Securities -- Subordination of Common Securities." The Company intends
to apply to have the Capital Securities approved for listing on the New York
Stock Exchange, Inc. ("NYSE") subject to official notice of issuance.
Each Capital Security is convertible in the manner described herein at the
option of the holder thereof, at any time prior to the earlier of (i) 5:00 p.m.
(New York City time) on the Business Day (as defined herein) immediately
preceding the date of repayment of such Capital Security, whether at maturity or
upon redemption, and (ii) 5:00 p.m. (New York City time) on the Conversion
Termination Date (as defined herein), if any, into a number of shares of the
Company's common stock, par value $.01 per share (the "Common Stock") that
equals the quotient obtained by dividing (i) $25 by (ii) 110% of the average of
the daily last reported sale prices of the Common Stock for the 10 consecutive
trading days immediately preceding the date of the Public Offering Prospectus
(as defined herein) or, in the event all of the Capital Securities offered
hereby are sold in the Subscription Offering (as defined herein), for the 10
consecutive trading days immediately preceding the Subscription Offering
Expiration Date (as defined herein), in each case as reported on the NYSE
Composite Tape, subject to adjustment in certain circumstances. See "Description
of Capital Securities -- Conversion Rights." The Common Stock is listed on the
NYSE under the symbol "NYB." On September 16, 1997, the last reported sale price
of the Common Stock on the NYSE Composite Tape was $30.3125 per share.
The Capital Securities offered hereby are being offered in a subscription
offering (the "Subscription Offering") through nontransferable subscription
rights ("Subscription Rights") granted to holders of record of the Common Stock
on September 18, 1997 ("Eligible Subscribers"). The Subscription Offering is
being made by The Bank of New York, as sales agent (the "Sales Agent"). All
Capital Securities offered hereby and not sold in the Subscription Offering, if
any, will be offered in a public offering (the "Public Offering" and, together
with the Subscription Offering, the "Offerings") by Keefe, Bruyette & Woods,
Inc., as underwriter (the "Underwriter"). See "The Offerings."
The Information Agent for the Subscription Offering is Beacon Hill Partners,
Inc. Eligible Subscribers should contact the Information Agent with any
questions or if they need additional copies of this Prospectus or any other
document at 1-800-854-9486.
(continued on next page)
FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE
INVESTORS IN EVALUATING AN INVESTMENT IN THE CAPITAL SECURITIES, SEE "RISK
FACTORS" BEGINNING ON PAGE 9 OF THIS PROSPECTUS.
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 COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE SECURITIES OFFERED HEREBY ARE NOT SAVINGS ACCOUNTS OR DEPOSITS AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
<TABLE>
<CAPTION>
===========================================================================================
UNDERWRITING DISCOUNT PROCEEDS TO
OFFERING PRICE AND AGENT FEES (1) THE TRUST(2)(3)
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Capital Security......... $25.00 (2) $25.00
- -------------------------------------------------------------------------------------------
Total........................ $50,000,000 (2) $50,000,000
===========================================================================================
</TABLE>
(1) The Company and the Trust have agreed to indemnify the Sales Agent in the
Subscription Offering and the Underwriter in the Public Offering against
certain liabilities under the Securities Act of 1933, as amended (the
"Securities Act"). See "The Offerings."
(2) As the proceeds of the sale of the Capital Securities will be invested in
the Junior Subordinated Debentures, the Company has agreed to pay to the
Sales Agent and the Underwriter certain fees for their services in the
Subscription Offering and the Public Offering. For a discussion of the fees
to be paid to the Sales Agent and the Underwriter, see "The Offerings."
(3) Before deducting expenses of the Offerings which are payable by the Company,
estimated at $1,020,000.
The date of this Prospectus is ________, 1997.
<PAGE>
(continued from previous page)
All Capital Securities offered in the Subscription Offering and, if
applicable, the Public Offering will be offered at the "Offering Price," equal
to the liquidation amount of $25.00 per Capital Security (the "Liquidation
Amount"). No Eligible Subscriber is required to subscribe for Capital Securities
in the Subscription Offering. The nontransferable Subscription Rights will
expire unless exercised by not later than 5:00 p.m. (New York City time) on
October __, 1997, unless otherwise extended by the Company. Eligible Subscribers
who wish to subscribe for the Capital Securities should deliver their
Subscription Form and payment to the Sales Agent not later than 5:00 p.m. (New
York City time) on October __, 1997, unless the Subscription Offering is
otherwise extended, in which event such Subscription Form and payment should be
delivered not later than 5:00 p.m. (New York City time) on the date to which the
Subscription Offering has been extended. An executed Subscription Form, once
accepted, may not be modified, amended or rescinded without the consent of the
Company and the Trust. See "The Offerings."
Holders of the Capital Securities will be entitled to receive cumulative
cash distributions, accumulating from the original date of issuance of the
Capital Securities (the "Issue Date") and payable quarterly in arrears on
January 31, April 30, July 31 and October 31 of each year, commencing January
31, 1998, at the annual rate of 8.00% of the Liquidation Amount of $25.00 per
Capital Security ("Distributions"). So long as no Debenture Event of Default (as
defined herein) has occurred and is continuing, the Company will have the right
to defer payments of interest on the Junior Subordinated Debentures at any time
and from time to time for a period not exceeding 20 consecutive quarters with
respect to each deferral period (each, an "Extension Period"), provided that no
Extension Period may end on a day other than an Interest Payment Date (as
defined herein) or extend beyond the Stated Maturity Date. Upon the termination
of any such Extension Period and the payment of all amounts then due, the
Company may elect to begin a new Extension Period, subject to the requirements
set forth herein. If and for so long as interest payments on the Junior
Subordinated Debentures are so deferred, Distributions on the Trust Securities
also will be deferred and the Company will not be permitted, subject to certain
exceptions described herein, to declare or pay any cash distributions with
respect to the Company's capital stock or to make any payment with respect to
debt securities of the Company that rank pari passu with or junior to the Junior
Subordinated Debentures. During an Extension Period, interest on the Junior
Subordinated Debentures will continue to accrue (and the amount of Distributions
to which holders of the Trust Securities are entitled will continue to
accumulate) at the rate of 8.00% per annum, compounded quarterly (to the extent
permitted by applicable law), and holders of Trust Securities will be required
to accrue interest income for United States federal income tax purposes prior to
receipt of cash payments attributable to such interest income. See "Description
of Junior Convertible Subordinated Debentures -- Option to Extend Interest
Payment Date" and "Certain Federal Income Tax Considerations -- Interest,
Original Issue Discount, Premium and Market Discount."
The Company will, through the Guarantee, the Common Guarantee, the
Declaration, the Junior Subordinated Debentures and the Indenture (each as
defined herein), taken together, fully, irrevocably and unconditionally
guarantee all of the Trust's obligations under the Trust Securities. See
"Relationship Among the Capital Securities, the Junior Subordinated Debentures
and the Guarantee -- Full and Unconditional Guarantee." The Guarantee and the
Common Guarantee will guarantee payments of distributions and payments on
liquidation or redemption of the Trust Securities, but in each case only to the
extent that the Trust holds funds on hand legally available therefor and has
failed to make such payments, as described herein. See "Description of the
Guarantee." If the Company fails to make a required payment on the Junior
Subordinated Debentures, the Trust will not have sufficient funds to make the
related payments, including distributions, on the Trust Securities. The
Guarantee and the Common Guarantee will not cover any such payment when the
Trust does not have sufficient funds on hand legally available therefor. In such
event, a holder of Capital Securities may institute a legal proceeding directly
against the Company to enforce payment to such holder of accrued but unpaid
interest on the Junior Subordinated Debentures with a principal amount equal to
the Liquidation Amount of the Capital Securities held by such holder. See
"Description of Junior Convertible Subordinated Debentures -- Enforcement of
Certain Rights by Holders of Capital Securities." The obligations of the Company
under the Junior Subordinated Debentures, the Guarantee and
(ii)
<PAGE>
the Common Guarantee will be unsecured and subordinate and rank junior in right
of payment to all Senior Indebtedness (as defined herein) of the Company to the
extent and in the manner set forth in the Indenture and the Guarantees. See
"Description of Junior Convertible Subordinated Debentures -- Subordination."
The Trust Securities will be subject to mandatory redemption in a Like
Amount (as defined herein), (i) in whole but not in part, on the Stated Maturity
Date upon repayment of the Junior Subordinated Debentures at a redemption price
equal to the principal amount of, plus accrued and unpaid interest on, the
Junior Subordinated Debentures (the "Maturity Redemption Price"), (ii) in whole
but not in part, at any time, contemporaneously with the optional prepayment of
all of the Junior Subordinated Debentures, 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 October 31, 2001
(the "Initial Optional Prepayment Date"), contemporaneously with the optional
prepayment by the Company of all or a part of the Junior Subordinated
Debentures, at a redemption price equal to the Optional Prepayment Price (as
defined herein) (the "Optional Redemption Price"). Any of the Maturity
Redemption Price, the Special Event Redemption Price and the Optional Redemption
Price may be referred to herein as the "Redemption Price." See "Description of
Capital Securities -- Redemption."
The Junior Subordinated Debentures will be prepayable prior to the Stated
Maturity Date at the option of the Company (i) on or after the Initial Optional
Prepayment Date, in whole or in part, at a prepayment price (the "Optional
Prepayment Price") equal to 100% of the principal amount thereof, plus accrued
and unpaid interest thereon to the date of prepayment, or (ii) at any time, in
whole but not in part, upon the occurrence and continuation of a Special Event,
at a prepayment price (the "Special Event Prepayment Price") equal to 100% of
the principal amount thereof plus accrued and unpaid interest thereon to the
date of prepayment. Either of the Optional Prepayment Price or the Special Event
Prepayment Price may be referred to herein as the "Prepayment Price." See
"Description of Junior Convertible Subordinated Debentures -- Optional
Prepayment" and " -- Special Event Prepayment."
In addition to the rights of the Company to redeem the Capital Securities
under the circumstances described in this Prospectus, the Company also will have
the right to terminate the convertibility of the Capital Securities into Common
Stock as described in this paragraph. If for at least 20 trading days within any
period of 30 consecutive trading days ending on or after October 31, 2001,
including the last trading day of such period, the Closing Price (as defined
herein) of the Common Stock exceeds 110% of the then applicable Conversion Price
of the Capital Securities, the Company may, at its option, terminate the right
to convert the Junior Subordinated Debentures into Common Stock, in which case
the right to convert the Capital Securities into Common Stock will likewise
terminate. To exercise this conversion termination option, the Company must
cause the Trust to issue a press release announcing the date upon which
conversion rights will expire (the "Conversion Termination Date"), prior to the
opening of business on the second trading day after a period in which the
condition in the preceding sentence has been met, but in no event may such press
release be issued prior to October 31, 2001. The Conversion Termination Date
shall be a Business Day not less than 30 and not more than 60 days following the
date of the press release. See "Description of Capital Securities -- Conversion
Rights."
The Company, as the holder of the outstanding Common Securities, will have
the right at any time to dissolve the Trust and after satisfaction of
liabilities to creditors of the Trust as required by applicable law, cause a
Like Amount of the Junior Subordinated Debentures to be distributed to the
holders of the Trust Securities in liquidation of the Trust, subject to the
Company having received an opinion of counsel to the effect that such
distribution will not be a taxable event to holders of the Capital Securities.
Unless the Junior Subordinated Debentures are distributed to the holders of the
Trust Securities, in the event of a liquidation of the Trust as described
herein, 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 $25.00 per Capital Security plus
accumulated and unpaid Distributions thereon to the date of payment. See
"Description of Capital Securities -- Liquidation of the Trust and Distribution
of Junior Subordinated Debentures" and "Certain Federal Income Tax
Considerations -- Receipt of Junior Subordinated Debentures Upon Liquidation of
the Trust" and " -- Sale or Redemption of Capital Securities."
(iii)
<PAGE>
As used herein, (i) the "Indenture" means the Indenture, to be dated on or
prior to the Issue Date, as amended and supplemented from time to time, between
the Company and The Bank of New York, as trustee (the "Debenture Trustee"),
relating to the Junior Subordinated Debentures, (ii) the "Declaration" means the
Amended and Restated Declaration of Trust relating to the Trust, to be dated on
or prior to the Issue Date, among the Company, as Sponsor, The Bank of New York,
as Property Trustee (the "Property Trustee"), The Bank of New York (Delaware),
as Delaware Trustee (the "Delaware Trustee" and, collectively with the Property
Trustee, the "Issuer Trustees"), the Administrators named therein (the
"Administrators") and the holders from time to time of the Trust Securities,
(iii) the "Guarantee" means the Guarantee Agreement relating to the Capital
Securities, to be dated on or prior to the Issue Date, between the Company and
The Bank of New York, as trustee (the "Guarantee Trustee") and (iv) the "Common
Guarantee" means the Guarantee Agreement relating to the Common Securities by
the Company, to be dated on or prior to the Issue Date.
IN CONNECTION WITH THE PUBLIC OFFERING, THE UNDERWRITER MAY OVER-ALLOT OR
EFFECT TRANSACTIONS THAT STABILIZE OR MAINTAIN THE MARKET PRICE OF THE CAPITAL
SECURITIES AND OF THE COMPANY'S COMMON STOCK AT LEVELS ABOVE THOSE WHICH MIGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE
NEW YORK STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
(iv)
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the securities offered
by this Prospectus. This Prospectus does not contain all the information set
forth in the Registration Statement and exhibits thereto. In addition, certain
documents filed by the Company with the Commission have been incorporated in
this Prospectus by reference. See "Incorporation of Certain Documents by
Reference." For further information with respect to the Company and the
securities offered hereby, reference is made to the Registration Statement,
including the exhibits thereto, and the documents incorporated herein by
reference. Statements contained in this Prospectus as to the contents of any
instrument, agreement or other document do not purport to be complete and in
each instance reference is made to the copy of such instrument, agreement or
other document, copies of which are available from the Company as described
below, each such statement being qualified in all respects by such reference.
The Company 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. Reports, proxy statements and other information concerning the
Company can be inspected and copied at prescribed rates at the Commission's
Public Reference Room, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, as well as the following Regional Offices of the Commission: 7 World
Trade Center, 13th Floor, New York, New York 10048; and 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material may be obtained by
mail from the Commission's Public Reference Section, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. If available, such reports and
other information may also be accessed through the Commission's electronic data
gathering, analysis and retrieval system ("EDGAR") via electronic means,
including the Commission's web site on the Internet (http://www.sec.gov). Such
reports, proxy statements and other information may also be inspected at the
offices of the NYSE, 20 Broad Street, New York, New York 10005.
No separate financial statements of the Trust have been included herein.
Neither the Company nor the Trust consider that such financial statements would
be material to holders of the Capital Securities because (i) all of the voting
securities of the Trust will be owned, directly or indirectly, by the Company, a
reporting company under the Exchange Act, (ii) the Trust has no independent
operations but exists for the sole purpose of issuing securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in Junior Subordinated Debentures issued by the Company, and
(iii) the Company's obligations described herein to provide certain indemnities
in respect of, and be responsible for, certain costs, expenses, debts and
liabilities of the Trust under the Indenture and any supplemental indenture
thereto and pursuant to the Declaration of the Trust, the Guarantee issued with
respect to the Capital Securities issued by the Trust, the Junior Subordinated
Debentures purchased by the Trust and the related Indenture, taken together,
constitute a full and unconditional guarantee of payments due on the Capital
Securities. See "Description of Junior Convertible Subordinated Debentures" and
"Description of the Guarantee." In addition, the Company does not expect that
the Trust will file reports, proxy statements and other information under the
Exchange Act with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company pursuant
to Sections 13 and 14 of the Exchange Act are incorporated by reference in this
Prospectus:
(1) Annual Report on Form 10-K for the fiscal year ended September 30,
1996;
(2) Quarterly Reports on Form 10-Q for the quarters ended December 31,
1996, March 31, 1997 and June 30, 1997, respectively; and
(3) Current Report on Form 8-K, dated January 2, 1997.
<PAGE>
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the securities offered hereby shall be
deemed to be incorporated by reference in this Prospectus, and to be a part
hereof from the date of filing of such documents. Any statement contained in
this Prospectus 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 or any supplement thereto to the extent that a statement
contained herein or therein (or in any subsequently filed document that also is
or is deemed to be incorporated by reference herein or therein) 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 Company will provide
without charge to each person to whom a copy of this Prospectus has been
delivered, upon the written or oral request of such person, a copy of any or all
of the documents referred to above which have been or may be incorporated by
reference herein (other than exhibits to such documents unless such exhibits are
specifically incorporated by reference in such documents), as well as a copy of
the Declaration, the Indenture, the Junior Subordinated Debentures, the
Guarantee and the other documents described herein. Requests for such copies
should be directed to New York Bancorp Inc., 241-02 Northern Boulevard,
Douglaston, New York 11362. Attention: Linda Bishop, Telephone (718) 631-8100.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain of the statements contained in this Prospectus and in documents
incorporated herein by reference that are not historical facts, including,
without limitation, statements of future expectations, projections of results of
operations and financial condition, statements of future economic performance
and other forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995, are subject to known and unknown
risks, uncertainties and other factors which may cause the actual results,
performance or achievements of the Company to differ materially from those
contemplated in such forward-looking statements. In addition to the specific
matters referred to herein, including, without limitation, those noted under the
caption "Risk Factors," important factors which may cause actual results to
differ from those contemplated in such forward-looking statements include: (i)
the results of the Company's efforts to implement its business strategy; (ii)
the effect of economic conditions and the performance of borrowers; (iii)
actions of the Company's competitors and the Company's ability to respond to
such actions; (iv) the cost of the Company's capital, which may depend in part
on the Company's portfolio quality, ratings, prospects and outlook; (v) changes
in governmental regulation, tax rates and similar matters; and (vi) other risks
detailed in the Company's other filings with the Commission.
2
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere in, or incorporated by reference into, this
Prospectus.
NEW YORK BANCORP INC.
The Company is a Delaware chartered savings and loan holding company,
headquartered in Douglaston, New York. Through its wholly-owned subsidiary, Home
Federal Savings Bank, a federally chartered stock savings bank (the "Bank"), the
Company operates 31 banking offices (of which five are supermarket branches and
26 are stand-alone branches) and seven loan production offices. At June 30,
1997, the Company had total consolidated assets of approximately $3.3 billion,
deposits of approximately $1.7 billion, and stockholders' equity of
approximately $166.9 million.
The directors and executive officers of the Company own in the aggregate
approximately 26% of the outstanding Common Stock. Management's strategy is
focused on enhancing stockholder value by expanding the customer base of the
Bank and increasing the market penetration of the Bank within its existing
markets. Since 1991, expansion of the franchise has been achieved through the
acquisition of three institutions or the assets thereof, which combined, added
approximately $1.5 billion in assets and 18 branch offices. As acquisition
premiums have reached historic highs in recent years, the Company has, in lieu
of building the franchise through acquisitions, instead focused on expanding the
branch network through the opening of supermarket branches. Currently, the Bank
maintains five supermarket branches and has plans to establish six additional
supermarket branches during fiscal 1998. By expanding its branch network through
the establishment of supermarket branches, the Company will be able to penetrate
further its market area on an accelerated basis and with much lower levels of
capital investment and ongoing operating expense relative to opening and
operating stand-alone branch offices.
As a result of the focus of management on enhancing stockholder value, the
Company has enjoyed superior performance measures. For the year ended September
30, 1996, the Company's return on average assets and return on average
stockholders' equity (after recording a SAIF recapitalization charge of
approximately $9.4 million) were 1.16% and 20.26%, respectively. For the nine
months ended June 30, 1997, the Company's return on average assets and
stockholder's equity were 1.61% and 31.08%, respectively. Contributing to the
superior performance of the institution is the Company's focus on net interest
income and fee income and aggressive control of expenses, as evidenced by its
efficiency ratios of 42.96% and 38.15% for the year ended September 30, 1996 and
the nine months ended June 30, 1997, respectively.
NEW YORK BANCORP CAPITAL TRUST
The Trust is a statutory business trust created under Delaware law
pursuant to (i) a declaration of trust, executed by the Company, as Sponsor, The
Bank of New York, as Property Trustee, The Bank of New York (Delaware), as
Delaware Trustee and Stan I. Cohen, as Initial Trustee, and (ii) the filing of a
certificate of trust with the Delaware Secretary of State on August 28, 1997.
The Trust's affairs are conducted by the Property Trustee and the Delaware
Trustee, and by the Administrators who are employees or officers of or
affiliated with the Company. 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 Debentures, 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 Debentures will be the sole assets of the
Trust, and payments under the Junior Subordinated Debentures will be the sole
revenue of the Trust. All of the Common Securities are and will continue to be
owned by the Company.
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THE CAPITAL SECURITIES
Securities Offered 2,000,000 8.00% Capital Securities
(Liquidation Amount $25.00 per Capital Security),
which represent preferred undivided beneficial
interests in the assets of the Trust. The Junior
Subordinated Debentures held by the Trust will
mature on October 31, 2027.
Offering Price $25.00 per Capital Security.
Distribution Dates January 31, April 30, July 31 and October 31 of
each year, commencing January 31, 1998.
Extension Periods So long as no Debenture Event of Default has
occurred and is continuing, Distributions on
Capital Securities may be deferred for the
duration of any Extension Period elected by the
Company with respect to the payment of interest on
the Junior Subordinated Debentures. No Extension
Period will exceed 20 consecutive quarters or
extend beyond the Stated Maturity Date. See
"Description of Junior Convertible Subordinated
Debentures-- Option to Extend Interest Payment
Date" and "Certain Federal Income Tax
Considerations-- Interest, Original Issue
Discount, Premium and Market Discount."
Ranking The Capital Securities will rank pari passu, and
payments thereon will be made pro rata, with the
Common Securities except as described under
"Description of Capital Securities-- Subordination
of Common Securities." The Junior Subordinated
Debentures will rank pari passu with all other
junior subordinated debentures issued by the
Company ("Other Debentures"), which will be issued
and sold (if at all) to other trusts established
by the Company (if any), in each case similar to
the Trust ("Other Trusts"), and will be unsecured
and subordinate and rank junior in right of
payment to all Senior Indebtedness of the Company
to the extent and in the manner set forth in the
Indenture. See "Description of Junior Convertible
Subordinated Debentures." There are currently no
other securities that would constitute Other
Debentures. The Guarantee will constitute an
unsecured obligation of the Company and will be
subordinate and rank junior in right of payment to
all Senior Indebtedness of the Company to the
extent and in the manner set forth in the
Guarantee Agreement. In addition, because the
Company is a holding company, the Company's
obligations under the Junior Subordinated
Debentures and the Guarantee effectively will be
subordinated to all existing and future
liabilities, including indebtedness, of the
Company's subsidiaries, including the Bank's
deposit liabilities. See "Description of the
Guarantee" and "Risk Factors-- Ranking of
Subordinate Obligations Under the Guarantee and
Junior Subordinated Debentures."
Conversion into Common
Stock Each Capital Security is convertible at the option
of the holder thereof, at any time prior to the
earlier of (i) 5:00 p.m. (New York City time) on
the Business Day immediately preceding the date of
repayment of such Capital Security, whether at
maturity or upon redemption, and (ii) 5:00 p.m.
(New York City time) on the Conversion Termination
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Date (if any) into a number of shares of Common
Stock that equals the quotient obtained by
dividing (i) $25 by (ii) 110% of the average of
the daily last reported sale prices of the Common
Stock for the 10 consecutive trading days
immediately preceding the date of the Public
Offering Prospectus or, in the event all of the
Capital Securities offered hereby are sold in the
Subscription Offering, for the 10 consecutive
trading days immediately preceding the
Subscription Offering Expiration Date, in each
case as reported on the NYSE Composite Tape,
subject to adjustment in certain circumstances
(such denominator being referred to herein as the
"Conversion Price"). In connection with any
conversion of a Capital Security, the Conversion
Agent (as defined herein) will exchange such
Capital Security for the appropriate principal
amount of Junior Subordinated Debentures held by
the Trust and immediately convert such Junior
Subordinated Debentures into shares of Common
Stock. No fractional shares of Common Stock will
be issued as a result of conversion, but in lieu
thereof such fractional interest will be paid by
the Company in cash. See "Description of Capital
Securities -- Conversion Rights." Holders of
Capital Securities at 5:00 p.m. (New York City
time) on a Distribution Record Date (as defined
herein) will be entitled to receive the
Distribution payable upon such Capital Securities
on the corresponding Distribution Date
notwithstanding the conversion of such Capital
Securities following such Distribution Record Date
but on or prior to such Distribution Date.
Termination of Conversion
Rights In addition to the rights of the Company to redeem
the Capital Securities under the circumstances
described in this Prospectus, the Company also
will have the right to terminate the
convertibility of the Capital Securities into
Common Stock as described in this paragraph. If
for at least 20 trading days within any period of
30 consecutive trading days ending on or after
October 31, 2001, including the last trading day
of such period, the Closing Price of the Common
Stock exceeds 110% of the then applicable
Conversion Price of the Capital Securities, the
Company may, at its option, terminate the right to
convert the Junior Subordinated Debentures into
Common Stock, in which case the right to convert
the Capital Securities into Common Stock will
likewise terminate. To exercise this conversion
termination option, the Company must cause the
Trust to issue a press release announcing the
Conversion Termination Date, prior to the opening
of business on the second trading day after a
period in which the condition in the preceding
sentence has been met, but in no event may such
press release be issued prior to October 31, 2001.
Notice of termination of conversion rights will be
given by first-class mail to the holders of the
Capital Securities not more than four Business
Days after the Trust issues the press release. The
Conversion Termination Date shall be a Business
Day not less than 30 and not more than 60 days
following the date of the press release described
above. See "Description of Capital Securities--
Conversion Rights."
Redemption The Trust Securities will be subject to mandatory
redemption in a Like Amount, (i) in whole but not
in part, on the Stated Maturity Date upon
repayment of the Junior Subordinated Debentures,
(ii) in whole but not
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in part, at any time, contemporaneously with the
optional prepayment of all of the Junior
Subordinated Debentures by the Company upon the
occurrence and continuation of a Special Event and
(iii) in whole or in part, on or after the Initial
Optional Prepayment Date, contemporaneously with
the optional prepayment by the Company of all or a
part of the Junior Subordinated Debentures, in
each case at the applicable Redemption Price. See
"Description of Capital Securities -- Redemption."
ERISA Considerations Prospective purchasers should consider the
restrictions on purchase set forth under "ERISA
Considerations."
Absence of Market for the
Capital Securities The Capital Securities will be a new
issue of securities for which there currently is
no market. Although the Company intends to apply
to have the Capital Securities approved for
listing on the NYSE, there can be no assurance
that such application will be approved, that an
active trading market for the Capital Securities
will develop or, if one does develop, that it will
be maintained. Accordingly, there can be no
assurance as to the development or liquidity of
any market for the Capital Securities.
THE SUBSCRIPTION OFFERING
Subscription Rights Holders of Subscription Rights may subscribe for
Capital Securities by properly completing and
signing the Subscription Form mailed to the
Eligible Subscribers together with this Prospectus
and by delivering it to the Sales Agent, or by
mailing it in the postage-paid return envelope
accompanying this Prospectus, accompanied by full
payment for the subscribed Capital Securities
(including with respect to Capital Securities
sought to be purchased pursuant to the exercise of
Excess Subscription Rights (as defined herein)).
The Subscription Rights will entitle each Eligible
Subscriber to purchase up to the same percentage
of the Capital Securities offered in the
Subscription Offering (rounded down to the nearest
whole Capital Security) as the percentage of the
outstanding shares of Common Stock owned of record
by the Eligible Subscriber as of the Subscription
Offering Record Date (as defined herein) (such
entitlement being referred to as an Eligible
Subscriber's "Pro Rata Subscription Right"). Based
on the number of shares of Common Stock
outstanding on the Subscription Offering Record
Date, an Eligible Subscriber would be entitled to
purchase pursuant to his Pro Rata Subscription
Right .0938 of a Capital Security for each share
of Common Stock held as of such date. Each
Eligible Subscriber also is being given the
opportunity to indicate on the Subscription
Form whether such Eligible Subscriber wishes to
purchase, in the event the Subscription Offering
is not fully subscribed pursuant to the Pro Rata
Subscription Rights, Capital Securities in excess
of those allotted to him pursuant to his Pro Rata
Subscription Rights and the maximum amount of such
excess Capital Securities such Eligible Subscriber
seeks to purchase (the "Excess Subscription
Rights"). In the event the exercise of the Excess
Subscription Rights results in the Subscription
Offering being oversubscribed, then the number of
Capital Securities sought to be
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purchased by each Eligible Subscriber exercising
Excess Subscription Rights will be reduced and
will equal the product of (i) such number of
excess Capital Securities sought to be purchased
by such Eligible Subscriber and (ii) a fraction,
the numerator of which is the number of
outstanding shares of Common Stock owned of record
by such Eligible Subscriber as of Subscription
Offering Record Date and the denominator of which
is the aggregate number of outstanding shares of
Common Stock owned of record by all Eligible
Subscribers who elect to exercise Excess
Subscription Rights as of the Subscription
Offering Record Date. The Sales Agent will have
the authority to determine the amount of Capital
Securities each Eligible Subscriber is entitled to
purchase pursuant to the foregoing procedures
using such methods (such as rounding) as it
determines to be appropriate.
Subscription Procedures Fully completed and executed Subscription Forms,
together with full payment for the subscribed-for
Capital Securities, must be received by 5:00 p.m.
(New York City time) on October __, 1997, unless
extended in the sole discretion of the Company (as
such date may be so extended, the "Subscription
Offering Expiration Date"). Payment for the
subscribed Capital Securities (including those
relating to a subscriber's Pro Rata Subscription
Right and Excess Subscription Rights) must be made
by certified, cashier's or personal check or by
money order. The failure of the Sales Agent to
receive from any Eligible Subscriber for any
reason a properly completed and executed
Subscription Form, accompanied by full payment, by
the Subscription Offering Expiration Date, will be
deemed a waiver and release by such person of all
Subscription Rights held. A Subscription Form,
once received by the Sales Agent, is irrevocable
and cannot be amended, modified or rescinded by
the Eligible Subscriber without the consent of the
Company and the Trust, which consent may be
withheld for any or no reason in the sole
discretion of the Company and the Trust. The
Company and the Trust may, but are not required
to, waive any irregularities in any Subscription
Form or require the submission of a corrected
Subscription Form or the remittance of full
payment for subscribed Capital Securities by such
date as the Company and the Trust may specify.
In order for the Subscription Rights to be
eligible for exercise, funds must be available to
the Trust on or prior to the Subscription Offering
Expiration Date. Funds paid by uncertified
personal check may take at least five business
days to clear, in the case of checks drawn on
domestic banks, and seven business days in the
case of checks drawn on foreign banks.
Accordingly, Eligible Subscribers who wish to pay
for the subscribed Capital Securities by means of
uncertified personal check are urged to make
payment sufficiently in advance of the
Subscription Offering Expiration Date to ensure
that the payment is received and clears by that
time, and are urged to consider in the alternative
payment by means of certified or cashier's check
or money order.
Subscription Refunds Refunds to Eligible Subscribers in the
Subscription Offering will be remitted (a) in the
event of an oversubscription in the Subscription
Offering, and (b) in the event the Subscription
Offering is terminated.
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Under no circumstances will interest be paid on
funds delivered as payment for the Capital
Securities. Any refunds due to Eligible
Subscribers on funds remitted will be mailed to
each Eligible Subscriber at the address designated
on the Subscription Form promptly after the
expiration or termination of the Subscription
Offering.
Modification and
Termination The Subscription Offering is not conditioned upon
the sale of a minimum Liquidation Amount of the
Capital Securities and, further, is not
conditioned upon the completion of the Public
Offering. The Subscription Offering may be
modified or terminated at any time and for any
reason in the sole discretion of the Company, on
or prior to the Subscription Offering Expiration
Date, by notice to that effect delivered to the
Sales Agent, followed by public notice. In the
event the Subscription Offering is terminated,
refunds of the payments made for subscribed-for
Capital Securities will be remitted and mailed to
each Eligible Subscriber at the address designated
on the Subscription Form promptly after the
termination of the Subscription Offering.
Management Subscriptions Certain of the directors and executive officers of
the Company owning in the aggregate approximately
24% of the Common Stock have informed the Company
that they presently intend to exercise their Pro
Rata Subscription Rights and also may exercise
Excess Subscription Rights.
Additional Information The Information Agent for the Subscription
Offering is Beacon Hill Partners, Inc. Eligible
Subscribers should contact the Information Agent
with any questions or if they need additional
copies of this Prospectus or any other document at
1-800-854-9486.
USE OF PROCEEDS
All of the proceeds to the Trust from the sale of the Trust Securities
will be invested by the Trust in the Junior Subordinated Debentures. The net
proceeds from the sale of the Junior Subordinated Debentures will be available
to the Company for general corporate purposes, including, without limitation,
the purchase, from time to time, in the open market or in privately-negotiated
transactions, of outstanding shares of the Common Stock and the making of
advances and capital contributions to the Bank, as well as in connection with
one or more possible future acquisitions by the Company. Initially, the net
proceeds may be used to make short-term investments. Under current policy, the
Office of Thrift Supervision (the "OTS") does not impose any capital adequacy
requirements on the Company, but rather imposes such capital adequacy
requirements on the Bank. To the extent the Company contributes a portion of the
net proceeds received from the sale of the Capital Securities to the Bank, such
proceeds would qualify as Tier 1 (core) capital at the Bank level under the
current capital adequacy guidelines of the OTS. See "Use of Proceeds."
RISK FACTORS
Prospective investors should carefully consider the matters set forth
under "Risk Factors."
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RISK FACTORS
Prospective purchasers of Capital Securities should carefully review the
information contained elsewhere in this Prospectus and should particularly
consider the following matters.
RANKING OF SUBORDINATE OBLIGATIONS UNDER THE GUARANTEE AND JUNIOR SUBORDINATED
DEBENTURES
The obligations of the Company under the Guarantee and under the Junior
Subordinated Debentures will be unsecured and subordinate and rank junior in
right of payment to all present and future Senior Indebtedness of the Company to
the extent and in the manner set forth in the Guarantee and the Indenture,
respectively. No payment may be made of the principal of, or premium, if any, or
interest on the Junior Subordinated Debentures, or in respect of any redemption,
retirement, purchase or other acquisition of any of the Junior Subordinated
Debentures, or under the Guarantee, at any time when (i) there shall have
occurred and be continuing a default in any payment in respect of any Senior
Indebtedness, or there has been an acceleration of the maturity thereof because
of a default or (ii) in the event of the acceleration of the maturity of the
Junior Subordinated Debentures, until payment has been made on all Allocable
Amounts (as defined herein) of Senior Indebtedness. At June 30, 1997, the
Company did not have any outstanding Senior Indebtedness. None of the Guarantee,
the Indenture, the Common Guarantee or the Declaration places any limitation on
the amount of secured or unsecured debt, including Senior Indebtedness, that may
be incurred by the Company in the future. The Company expects from time to time
to incur additional indebtedness constituting Senior Indebtedness. See
"Description of Junior Subordinated Debentures -- Subordination" and
"Description of the Guarantee -- Status."
The ability of the Trust to pay amounts due on the Capital Securities is
wholly dependent upon the Company making payments on the Junior Convertible
Subordinated Debentures as and when required.
HOLDING COMPANY STRUCTURE
Because the Company is a holding company, the right of the Company to
participate in any distribution of assets of any subsidiary upon such
subsidiary's liquidation or reorganization or otherwise (and thus the ability of
holders of the Capital Securities to benefit indirectly from such distribution)
is subject to the prior claims of creditors of that subsidiary (including
depositors in the case of the Bank), except to the extent that the Company may
itself be recognized as a creditor of that subsidiary. At June 30, 1997, the
subsidiaries of the Company had total liabilities (excluding liabilities owed to
the Company) of approximately $3.1 billion, including deposits, in the case of
the Bank. Accordingly, the Capital Securities will be effectively subordinated
to all existing and future liabilities of the Company's subsidiaries, and
holders of Capital Securities should look only to the assets of the Company for
payments on the Capital Securities. None of the Guarantee, the Indenture, the
Common Guarantee or the Declaration places any limitation on the amount of
secured or unsecured debt that may be incurred by the Company's subsidiaries in
the future. See "Description of Junior Convertible Subordinated Debentures --
General" and "Description of the Guarantee -- General."
In addition, as the Company is a non-operating holding company, almost all
of the operating assets of the Company are owned by the Company's subsidiaries.
The Company relies primarily on dividends from such subsidiaries to meet its
obligations for payment of principal and interest on its outstanding debt
obligations, if any, and corporate expenses. The Bank is subject to certain
restrictions imposed by federal law on any extensions of credit to, and certain
other transactions with, the Company and certain other affiliates, and on
investments in stock or other securities thereof. Such restrictions prevent the
Company and such other affiliates from borrowing from the Bank unless the loans
are secured by various types of collateral. Further, such secured loans, other
transactions and investments by the Bank are generally limited in amount as to
the Company and as to each of such other affiliates to 10% of such Bank's
capital and surplus and as to the Company and all of such other affiliates to an
aggregate of 20% of such Bank's capital and surplus. In addition, payment of
dividends to the Company by the Bank is subject to ongoing review by banking
regulators and is subject to various statutory limitations and in certain
circumstances requires prior approval by banking regulatory authorities. In
addition, in 1988 the Bank
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issued Series A and Series B subordinated capital notes, and the agreements
governing such notes restrict the amounts which the Bank can pay to the Company
by way of cash dividends. Under current OTS regulations and restrictions imposed
by the Bank's subordinated indebtedness referred to above, on July 1, 1997, the
Bank could have declared dividends to the Company of approximately $11.5
million, of which approximately $8.0 million has been subsequently declared and
paid to the Company. Federal and state regulatory agencies also have the
authority to limit further the Bank's payment of dividends based on other
factors, such as the maintenance of adequate capital for the Bank, which could
reduce the amount of dividends otherwise payable.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSIDERATIONS
So long as no Debenture Event of Default shall have occurred and be
continuing, the Company will have the right under the Indenture to defer
payments of interest on the Junior Subordinated Debentures at any time or from
time to time for a period not exceeding 20 consecutive quarters with respect to
each Extension Period, provided that no Extension Period may extend beyond the
Stated Maturity Date. Upon any such deferral, quarterly Distributions on the
Capital Securities by the Trust will be deferred (and the amount of
Distributions to which holders of the Capital Securities are entitled will
accumulate additional Distributions thereon at the rate of 8.00% per annum,
compounded quarterly (to the extent permitted by applicable law)) from the
relevant payment date for such Distributions during any such Extension Period.
The Company may extend any existing Extension Period, provided that such
extension does not cause such Extension Period to exceed 20 consecutive quarters
or to extend beyond the Stated Maturity Date. Upon the expiration of any
Extension Period and the payment of all interest then accrued and unpaid on the
Junior Subordinated Debentures (together with interest thereon at the annual
rate of 8.00%, compounded quarterly, to the extent permitted by applicable law),
the Company may elect to begin a new Extension Period, subject to the above
requirements. There is no limitation on the number of times that the Company may
elect to begin an Extension Period. See "Description of Capital Securities --
Distributions" and "Description of Junior Convertible Subordinated Debentures --
Option to Extend Interest Payment Period."
The Company believes that, as a result of its inability to pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, its Common Stock during an Extension Period
and the additional restrictions imposed upon it to the extent described under
"Description of Junior Convertible Subordinated Debentures -- Option to Extend
Interest Payment Date," the likelihood of its exercising its right to defer
payments of interest is remote. However, should the Company exercise its rights
to defer payments of interest by extending the interest payment period or should
the Junior Subordinated Debentures be deemed to have been issued with original
issue discount ("OID"), each holder of Capital Securities will be required to
accrue income (as OID) for United States federal income tax purposes in respect
of the deferred interest allocable to its Capital Securities. As a result,
holders of Capital Securities will recognize income for United States federal
income tax purposes in advance of the receipt of cash and will not receive the
cash from the Trust related to such income if such holder disposes of its
Capital Securities prior to the record date for the date on which Distributions
of such amounts are made. The Company has no current intention of exercising its
right to defer payments of interest by extending the interest payment period on
the Junior Subordinated Debentures. However, should the Company determine to
exercise such right 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 Company's rights to defer interest
payments, the market price of the Capital Securities (which represents a
preferred undivided beneficial interest in the Junior Subordinated Debentures)
may be more volatile than other securities on which OID accrues that do not have
such rights. See "Certain Federal Income Tax Considerations -- Interest,
Original Issue Discount, Premium and Market Discount" and "-- Sales or
Redemption of Capital Securities."
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REDEMPTION OR DISTRIBUTION
Upon the occurrence and continuation of a Special Event (including a Tax
Event, a Regulatory Capital Event or an Investment Company Event, in each case
as defined under "Description of Junior Convertible Subordinated Debentures --
Special Event Prepayment"), the Company will have the right to prepay the Junior
Subordinated Debentures, in whole, but not in part, at the Special Event
Prepayment Price within 90 days following the occurrence of such Special Event
and therefore cause a mandatory redemption of the Capital Securities at the
Special Event Redemption Price. On or after the Initial Optional Prepayment
Date, the Company may prepay the Junior Subordinated Debentures, in whole or in
part, for any reason and thereby cause an optional redemption of the Capital
Securities, in whole or in part, at the Optional Redemption Price. See
"Description of Capital Securities -- Redemption" and "-- Liquidation of the
Trust and Distribution of Junior Subordinated Debentures."
The Company will have the right at any time to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust as required by
applicable law, cause the Junior Subordinated Debentures to be distributed to
the holders of the Trust Securities in liquidation of the Trust. Such right is
subject to the Company having received an opinion of counsel to the effect that
such distribution will not be a taxable event to holders of Capital Securities.
Under current United States federal income tax law, a distribution of Junior
Subordinated Debentures 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 Debentures may constitute a taxable
event to holders of Capital Securities. Moreover, upon the 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
Federal Income Tax Considerations -- Receipt of Junior Subordinated Debentures
Upon Liquidation of the Trust."
The Company believes that under current law it is entitled to deduct the
interest accruing on the Junior Subordinated Debentures. Under the Taxpayer
Relief Act of 1997, enacted on August 5, 1997, issuers of certain convertible
debt instruments are not entitled to deduct interest thereon. For example,
interest is not deductible if the debt instrument is convertible into equity of
the issuer (or a related party) at the option of the holder and there is a
substantial certainty that the holder will exercise the conversion option.
Similarly, interest is not deductible if the debt instrument is part of an
arrangement which is reasonably expected to result in a conversion at the option
of the issuer (or a related party). The Company believes that this legislation
should not apply to the Junior Subordinated Debentures. The Internal Revenue
Service (the "Service"), however, has not yet issued any guidance regarding its
interpretation of the new legislation. There can be no assurance that the
Service will not take the position that interest on the Junior Subordinated
Debentures is not deductible. Accordingly, there can be no assurance that an
audit or future interpretation by the Service of the new legislation will not
result in a Tax Event and an early redemption of the Capital Securities before,
or after, October 31, 2001 at the Special Event Redemption Price.
In addition, in recent years, there have been several proposals to adopt
legislation which, if enacted and made applicable to the Junior Subordinated
Debentures, would preclude the Company from deducting interest thereon. The most
recent proposal was made by the Clinton Administration on March 19, 1997. Such
proposals have not been adopted by Congress, but there can be no assurance that
similar proposals will not be adopted in the future and made applicable to the
Junior Subordinated Debentures. Accordingly, there can be no assurance that any
such legislation will not result in a Tax Event which would permit the Company
to cause a redemption of the Capital Securities before, or after, October 31,
2001 at the Special Event Redemption Price.
Under current law, the Bank is a federal savings association, and the
Company is a savings and loan holding company that is not subject to regulation
as a bank holding company under the Bank Holding Company Act of 1956, as
amended. However, legislation currently pending in Congress, known as the
Financial Services Competition Act of 1997, provides for the termination of
federal savings association charters and their conversion into national bank
charters. This legislation also provides for the registration of bank holding
companies resulting
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from conversions of savings association to national banks. In the event that
this legislation is adopted, the Company could be required to register, and
become subject to regulation, as a bank holding company. Bank holding companies,
unlike saving and loan holding companies such as the Company, are subject to
consolidated regulatory capital adequacy requirements. Although currently, the
Company is not subject to any regulatory capital adequacy guidelines, as a bank
holding company subject to consolidated capital adequacy requirements, the
amount of the proceeds received from the Offerings would only be includible in
calculating the Company's capital adequacy requirements to an amount not
exceeding 25% of the Company's Tier 1 capital. There can be no assurance that
the adoption of this or any other similar legislation in the future will not
result in a Regulatory Capital Event (as defined herein) which would permit the
Company to cause a redemption of the Capital Securities at any time before, or
after, October 31, 2001 at the Special Event Redemption Price.
See "Description of Capital Securities -- Redemption," "Description of
Junior Convertible Subordinated Debentures -- Special Event Prepayment" and
"Certain Federal Income Tax Considerations -- Sale or Redemption of Capital
Securities."
TERMINATION OF CONVERSION RIGHTS
On and after October 31, 2001, the Company may, subject to certain
conditions including advance public notice, at its option, cause the conversion
rights of holders of Junior Subordinated Debentures to terminate, provided that
the Closing Price of the Common Stock exceeds 110% of the then applicable
Conversion Price of the Capital Securities for a specified period, in which case
the right to convert the Capital Securities into Common Stock will likewise
terminate. See "Description of Capital Securities -- Conversion Rights --
Termination of Conversion Rights."
POSSIBLE ADVERSE EFFECT ON MARKET PRICES
There can be no assurance as to the market prices for the Capital
Securities or, if a termination of the Trust were to occur, for the Junior
Subordinated Debentures distributed to the holders of Capital Securities.
Accordingly, the Capital Securities or the Junior Subordinated Debentures may
trade at a discount from the price that the investor paid to purchase the
Capital Securities offered hereby. Because holders of Capital Securities may
receive Junior Subordinated Debentures in liquidation of the Trust and because
Distributions are otherwise limited to payments on the Junior Subordinated
Debentures, prospective purchasers of Capital Securities are also making an
investment decision with regard to the Junior Subordinated Debentures and should
carefully review all the information regarding the Junior Subordinated
Debentures contained herein. See "Description of Junior Convertible Subordinated
Debentures."
RIGHTS UNDER THE GUARANTEE
The Bank of New York will act as Guarantee Trustee and will hold the
Guarantee for the benefit of the holders of the Capital Securities. The Bank of
New York also will act as Property Trustee and as Debenture Trustee under the
Indenture. The Bank of New York (Delaware) will act as Delaware Trustee under
the Declaration. The Guarantee will guarantee 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 legally available
therefor; (ii) the applicable Redemption Price with respect to any Capital
Securities called for redemption, to the extent that the Trust has funds on hand
legally available therefor; and (iii) upon a voluntary or involuntary
dissolution, winding up or liquidation of the Trust (unless the Junior
Subordinated Debentures 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 legally available therefor on such date and (b) the amount of
assets of the Trust remaining available for distribution to holders of the
Capital Securities on such date. The holders of a majority in Liquidation Amount
of the Capital Securities will 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 Guarantee or to
12
<PAGE>
direct the exercise of any trust power conferred upon the Guarantee Trustee. Any
holder of the Capital Securities may institute a legal proceeding directly
against the Company 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 Company defaults on its obligation to pay amounts
payable under the Junior Subordinated Debentures, the Trust will not have
sufficient 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 will 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 Company to pay principal of or premium, if any, or interest on
the Junior Subordinated Debentures on the payment date on which such payment is
due and payable, then a holder of Capital Securities may institute a legal
proceeding directly against the Company for enforcement of payment to such
holder of the principal of or premium, if any, or interest on such Junior
Subordinated Debentures having a principal amount equal to the Liquidation
Amount of the Capital Securities of such holder (a "Direct Action").
Notwithstanding any payments made to a holder of Capital Securities by the
Company in connection with a Direct Action, the Company shall remain obligated
to pay the principal of and premium, if any, and interest on the Junior
Subordinated Debentures, 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 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 Debentures or to assert directly any other rights in
respect of the Junior Subordinated Debentures. See "Description of Junior
Convertible Subordinated Debentures -- Enforcement of Certain Rights by Holders
of Capital Securities" and "-- Debenture Events of Default" and "Description of
the Guarantee." The Declaration will provide that each holder of Capital
Securities by acceptance thereof agrees to the provisions of the Indenture.
LIMITED VOTING RIGHTS
Holders of Capital Securities generally will have voting rights relating
only to the modification of the terms of the Capital Securities and the exercise
of the Trust's rights as holder of the Junior Subordinated Debentures. Holders
of Capital Securities will not be entitled to vote to appoint, remove or
replace, or to increase or decrease the number of, the Issuer Trustees or
Administrators, which voting rights are vested exclusively in the holder of the
Common Securities, except as described under "Description of Capital Securities
- -- Removal of Issuer Trustees and Administrators." See "Description of Capital
Securities -- Voting Rights; Amendment of the Declaration."
TRADING PRICE
The Capital Securities may trade at a price that does not fully reflect
the value of accrued but unpaid interest with respect to the underlying Junior
Subordinated Debentures. A holder using the accrual method of accounting (and a
cash method holder, during and after an Extension Period or if the Junior
Subordinated Debentures are deemed to have been issued with OID) who disposes of
its Capital Securities between Distribution Record Dates (as defined herein)
will be required to include accrued but unpaid interest (or OID) on the Junior
Subordinated Debentures through the date of disposition in income as ordinary
income and to add such amount to its adjusted tax basis in its share of the
underlying Junior Subordinated Debentures deemed disposed of. To the extent the
selling price is less than the holder's adjusted tax basis, a holder will
recognize a capital loss. Subject to certain limited exceptions, capital losses
cannot be applied to offset ordinary income for United States federal income tax
purposes. See "Certain Federal Income Tax Considerations -- Interest, Original
Issue Discount, Premium and Market Discount" and "-- Sale or Redemption of
Capital Securities."
13
<PAGE>
ABSENCE OF PUBLIC MARKET AND TRANSFER RESTRICTIONS
There is no existing market for the Capital Securities and there can be no
assurance as to the liquidity of any markets that may develop for the Capital
Securities, the ability of the holders to sell their Capital Securities or at
what price holders of the Capital Securities will be able to sell their Capital
Securities, as the case may be. Future trading prices of the Capital Securities
will depend on many factors including, among other things, prevailing interest
rates, the Company's operating results, and the market for similar securities.
Although the Company intends to apply to have the Capital Securities approved
for listing on the NYSE, there can be no assurance that such application will be
approved, that an active trading market for the Capital Securities will develop
or, if one does develop, that it will be maintained. In addition,
notwithstanding the registration of the Capital Securities, holders who are
"affiliates" of the Company or the Trust as defined under Rule 405 of the
Securities Act may publicly offer for sale or resell the Capital Securities only
in compliance with the provisions of Rule 144 under the Securities Act.
14
<PAGE>
NEW YORK BANCORP INC.
The Company is a Delaware chartered savings and loan holding company,
headquartered in Douglaston, New York. Through its wholly-owned subsidiary, the
Bank, a federally-chartered stock savings bank, the Company operates 31 banking
offices (of which five are supermarket branches and 26 are stand-alone branches)
and seven loan production offices. At June 30, 1997, the Company had total
consolidated assets of approximately $3.3 billion, deposits of approximately
$1.7 billion, and stockholders' equity of approximately $166.9 million.
The Bank's principal business consists of attracting deposits from the
general public and investing those deposits, together with funds generated from
operations and borrowings, in the origination and purchase of residential,
multifamily, and commercial mortgage loans, cooperative apartment loans and
consumer loans. In addition, the Bank invests in mortgage-backed and related
securities, securities issued by the U.S. government and agencies thereof, and
other investments in which the Bank is permitted to invest under federal laws
and regulations.
The Bank has been, and intends to continue to be, a community bank
offering a variety of deposit and lending services designed to meet the needs of
the communities it serves. The Bank's deposit customer base is drawn primarily
from Kings, Queens, Richmond, Nassau, and Suffolk Counties, while its loan
origination activities are conducted primarily in the five boroughs of New York
City, Nassau, Suffolk and Westchester Counties, as well as certain areas of
Connecticut and New Jersey.
The directors and executive officers of the Company own in the aggregate
approximately 26% of the outstanding Common Stock. Management's strategy is
focused on enhancing stockholder value by expanding the customer base of the
Bank and increasing the market penetration of the Bank within its existing
markets. Since 1991, expansion of the franchise has been achieved through the
acquisition of three institutions or the assets thereof, which combined, added
approximately $1.5 billion in assets and 18 branch offices. As acquisition
premiums have reached historic highs in recent years, the Company has, in lieu
of building the franchise through acquisitions, instead focused on expanding the
branch network through the opening of supermarket branches. Currently, the Bank
maintains five supermarket branches and has plans to establish six additional
supermarket branches during fiscal 1998. By expanding its branch network through
the establishment of supermarket branches, the Company will be able to penetrate
further its market area on an accelerated basis and with much lower levels of
capital investment and ongoing operating expense relative to opening and
operating stand-alone branch offices.
In addition to expanding its branch office network, the Bank has also
devoted considerable resources to developing a sales culture within its branch
system, through additional training and an incentive compensation system which
provides bonuses for successful sales efforts. The Bank has also developed a
variety of deposit and loan products, including new checking accounts, life
insurance and annuity products.
As a result of the focus of management on enhancing stockholder value, the
Company has enjoyed superior performance measures. For the year ended September
30, 1996, the Company's return on average assets and return on average
stockholders' equity (after recording a SAIF recapitalization charge of
approximately $9.4 million) were 1.16% and 20.26%, respectively. For the nine
months ended June 30, 1997, the Company's return on average assets and
stockholder's equity were 1.61% and 31.08%, respectively. Contributing to the
superior performance of the institution is the Company's focus on net interest
income and fee income and aggressive control of expenses, as evidenced by its
efficiency ratios of 42.96% and 38.15% for the year ended September 30, 1996 and
the nine months ended June 30, 1997, respectively.
The Bank was organized in 1935 as a federally-chartered savings and loan
association, changed its charter in 1983 to a federal savings bank, and
converted, in February 1988, from mutual to stock form in connection with its
acquisition by the Company. The Company's principal executive offices are
located at 241-02 Northern Boulevard, Douglaston, New York 11362, and its
telephone number at such address is (718) 631-8100.
15
<PAGE>
USE OF PROCEEDS
The proceeds to the Trust from the offering of the Capital Securities will
be $50,000,000. All of the proceeds from the sale of Capital Securities
(together with the proceeds of the Common Securities) will be invested by the
Trust in the Junior Subordinated Debentures. The estimated net proceeds from the
sale of the Junior Subordinated Debentures of approximately $48,530,000, after
deducting the underwriting discount (assuming 50% of the Capital Securities will
be sold in each of the Subscription Offering and the Public Offering,
respectively) and estimated offering expenses, will be available to the Company
for general corporate purposes, including, without limitation, the purchase,
from time to time, in the open market or in privately-negotiated transactions,
of outstanding shares of the Common Stock and the making of advances and capital
contributions to the Bank, as well as in connection with one or more possible
future acquisitions by the Company. Initially, the net proceeds may be used to
make short-term investments. Under current policy, the OTS does not impose any
capital adequacy requirements on the Company, but rather imposes such capital
adequacy requirements on the Bank. To the extent the Company contributes a
portion of the net proceeds received from the sale of the Capital Securities to
the Bank, such proceeds would qualify as Tier 1 (core) capital at the Bank level
under the current capital adequacy guidelines of the OTS.
16
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth for the respective periods indicated the
ratios of the Company's consolidated earnings to fixed charges. For purposes of
computing the ratio, earnings represent pretax income before extraordinary item
and cumulative effect of change in accounting principles plus fixed charges.
Fixed charges, excluding interest on deposits, include interest expense (other
than on deposits) and the proportion deemed representative of the interest
factor of rent expense, net of income from subleases. Fixed charges, including
interest on deposits, include all interest expense and the proportion deemed
representative of the interest factor of rent expense, net of income from
subleases.
NINE MONTHS ENDED YEAR ENDED
JUNE 30, SEPTEMBER 30,
--------------- ----------------------------
1997 1996 1996 1995(1) 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
Ratio of Earnings
to Fixed Charges:
Excluding interest
on deposits 2.36x 2.41x 2.21x 1.78x 3.09x 4.25x 2.33x
Including interest
on deposits 1.72x 1.60x 1.53x 1.31x 1.61x 1.64x 1.39x
- ---------------
(1) The decline in the ratio of earnings to fixed charges for the year ended
September 30, 1995, is primarily attributable to certain non-recurring
merger-related and restructuring expenses of approximately $19.0 million
incurred by the Company in connection with the acquisition of Hamilton
Bancorp, Inc. ("Hamilton").
17
<PAGE>
CAPITALIZATION
The following table sets forth the unaudited consolidated capitalization
of the Company and its consolidated subsidiaries at June 30, 1997, and as
adjusted to give effect to the sale of the Capital Securities offered hereby and
the application of the estimated net proceeds therefrom as described under "Use
of Proceeds." The table should be read in conjunction with the historical
consolidated financial statements of the Company and related notes included in
Annual Report on Form 10-K for the year ended September 30, 1996 and the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997. See
"Available Information" and "Incorporation of Certain Documents by Reference."
AS OF JUNE 30, 1997
-------------------
ACTUAL ADJUSTED(1)
------ -----------
(IN THOUSANDS)
Subordinated Bank debt due in fiscal 1999 $7,600 $7,600
Variable rate reverse repurchase
agreement due in fiscal 1998 100,000 100,000
Fixed rate reverse repurchase
agreement due in fiscal 1999 73,300 73,300
Fixed rate reverse repurchase
agreements due in fiscal 2000 137,000 137,000
Fixed rate reverse repurchase
agreement due in fiscal 2001 79,000 79,000
Fixed rate reverse repurchase
agreement due in fiscal 2002 40,000 40,000
------- -------
Total long-term debt 436,900 436,900
------- -------
Company obligated, mandatorily redeemable,
convertible preferred securities of
subsidiary trust holding solely
subordinated debentures of the Company -- 50,000
------ -------
Shareholders' equity:
Common stock, $.01 par value, 30,000,000
shares authorized; 29,493,425 shares issued;
21,591,247 shares outstanding 295 295
Additional paid-in capital 66,502 66,502
Retained earnings, substantially restricted 171,847 171,847
Treasury stock, at cost, 7,902,178 shares (72,480) (72,480)
Unrealized appreciation on securities
available for sale, net of tax benefit 708 708
------ ------
Total shareholders' equity 166,872 166,872
------- -------
Total capitalization $603,772 $653,772
======= =======
- ---------------
(1) Reflects the issuance of the Capital Securities. The Trust is a subsidiary
of the Company and will hold the Junior Subordinated Debentures as its
sole asset.
18
<PAGE>
SELECTED CONSOLIDATED FINANCIAL AND OTHER DATA
The selected consolidated financial data below under the caption
"Operating Data" and "Financial Condition Data" for, and as of the end of, each
of the years in the five-year period ended September 30, 1996 are derived from
the consolidated financial statements of the Company, which consolidated
financial statements have been audited by KPMG Peat Marwick LLP, independent
certified public accountants. The consolidated financial statements as of
September 30, 1996 and 1995, and for each of the years in the three-year period
ended September 30, 1996, and the report thereon, are incorporated herein by
reference. See "Available Information" and "Incorporation of Certain Documents
by Reference." The selected consolidated financial data below under the caption
"Operating Data" and "Financial Condition Data" for the nine-month periods ended
June 30, 1997 and 1996, and as of June 30, 1997 and 1996, are derived from the
unaudited consolidated financial statements of the Company incorporated herein
by reference. Such interim unaudited data reflect, in the opinion of management
of the Company, all adjustments (consisting only of normal recurring
adjustments) necessary for a fair presentation of such data. Results for the
nine months ended June 30, 1997 are not necessarily indicative of results which
may be expected for any other interim period or for the year as a whole. The
information presented below under the caption "Selected Financial Ratios and
Other Data" and "Customer Service Facilities" is unaudited.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
JUNE 30, YEAR ENDED SEPTEMBER 30,
--------------------- --------------------------------------------------------
1997 1996 1996 1995 1994(1) 1993(1) 1992(1)
---- ---- ---- ---- ------- ------- -------
(In Thousands, Except Per Share Amounts)
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING DATA:
Interest income.......................... $176,402 $153,142 $207,491 $196,972 $175,530 $160,752 $152,417
Interest expense......................... 87,357 79,218 106,746 101,730 79,948 71,385 84,415
-------- -------- -------- -------- --------- -------- --------
Net interest income.................... 89,045 73,924 100,745 95,242 95,582 89,367 68,002
Provision for possible loan losses....... (1,800) (900) (1,200) (1,700) (2,650) (4,700) (8,404)
-------- -------- -------- -------- --------- -------- --------
Net interest income after provision for
possible loan losses.................... 87,245 73,024 99,545 93,542 92,932 84,667 59,598
-------- -------- -------- -------- --------- -------- --------
Non-interest income:
Loan fees and service charges.......... 2,254 2,094 2,770 2,566 3,292 3,341 3,196
Banking service fees................... 4,726 3,862 5,323 3,944 3,108 3,753 1,608
Fees from sale of investment products.. 1,422 1,069 1,376 617 615 536 371
Net loss on financial futures
transactions.......................... -- -- -- -- -- (495) --
Net gain (loss) on the sale of mortgage
loans and securities available for sale 747 2,778 4,750 (1,088) 214 3,857 13,185
Other.................................. 4,689 368 448 573 771 192 625
-------- -------- -------- --------- --------- -------- --------
Total non-interest income............. 13,838 10,171 14,667 6,612 8,000 11,184 18,985
-------- -------- -------- --------- --------- -------- --------
General and administrative expenses...... 37,240 35,255 47,535 48,968 50,845 48,455 42,374
-------- -------- -------- --------- --------- -------- --------
Merger and restructuring expense......... -- -- -- 19,024 -- -- --
-------- -------- -------- --------- --------- -------- --------
Real estate operations, net.............. 899 340 463 883 880 1,296 3,413
-------- -------- -------- --------- --------- -------- ---------
SAIF recapitalization expense............ -- -- 9,432 -- -- -- --
-------- -------- -------- --------- --------- -------- ---------
Income before income tax expense,
extraordinary item and cumulative effect
of change in accounting principle...... 62,944 47,600 56,782 31,279 49,207 46,100 32,796
Income tax expense....................... (25,603) (20,966) (24,776) (19,717) (21,740) (20,912) (15,346)
Extraordinary item, early
extinguishment of debt................. -- -- -- -- -- -- (570)
Cumulative effect of change in accounting for
income taxes........................... -- -- -- -- 5,685 -- --
-------- -------- -------- --------- --------- -------- --------
Net income............................... $37,341 $26,634 $32,006 $11,562 $33,152 $25,188 $16,880
======== ======== ======== ========= ========= ======== ========
Per Share Data:
Income before extraordinary item
and cumulative effect of change
in accounting principle(3)............. $1.63 $1.10 $1.34 $.43 $1.01 $N/M(4) $N/M(5)
Net income(3)............................ 1.63 1.10 1.34 .43 1.22 N/M(4) N/M(5)
</TABLE>
19
<PAGE>
<TABLE>
<CAPTION>
JUNE 30, SEPTEMBER 30,
------------------------ -------------------------------------------------------------------
1997 1996 1996 1995 1994(1) 1993(1) 1992(1)
---- ---- ---- ---- ------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
FINANCIAL CONDITION DATA:
Total Assets..........................$3,283,653 $2,918,120 $2,940,907 $2,731,592 $2,583,982 $2,250,605 $2,153,861
First mortgage loans.................. 1,769,701 1,580,451 1,603,769 1,389,776 1,158,604 1,103,575 992,864
Other loans........................... 254,425 275,733 268,779 296,439 299,455 311,670 326,354
Allowance for possible loan losses.... (19,613) (19,735) (19,386) (21,272) (25,705) (26,828) (19,455)
Loans receivable, net............... 2,004,513 1,836,449 1,853,162 1,664,943 1,432,354 1,388,417 1,299,763
Mortgage-backed securities held
to maturity......................... 602,828 562,785 550,817 664,726 785,593 439,605 448,296
Mortgage-backed securities
available for sale.................. 397,118 295,042 280,429 206,794 171,983 234,236 76,707
Debt securities
held to maturity.................... 606 1,155 643 21,179 52,984 4,662 26,620
Debt and equity securities
available for sale................. 135,553 93,910 136,133 46,273 180 -- 67
Federal Home Loan Bank stock.......... 52,641 30,944 27,938 20,288 17,409 21,734 20,876
Money market investments.............. -- 6,500 10,700 13,915 21,844 77,261 192,758
Trading account securities............ -- -- -- 2,003 12,939 12,487 12,242
Deposits.............................. 1,690,993 1,746,975 1,715,959 1,748,874 1,791,514 1,758,102 1,782,764
Borrowed funds........................ 1,347,230 958,912 1,008,786 767,138 578,897 293,693 222,850
Shareholders' equity.................. 166,872 158,374 151,903 156,386 171,291 153,769 99,933(6)
</TABLE>
<TABLE>
<CAPTION>
AT OR FOR THE
NINE MONTHS ENDED
JUNE 30, AT OR FOR THE YEAR ENDED SEPTEMBER 30,
------------------- --------------------------------------------------------------
1997 1996 1996 1995 1994(1) 1993(1) 1992(1)
---- ---- ---- ---- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED FINANCIAL RATIOS AND OTHER DATA:
Return on average assets................. 1.61% 1.31% 1.16% .44%(2) 1.35% 1.16% .89%
Return on average shareholders' equity... 31.08 22.39 20.26 6.81(2) 20.13 18.74 17.81
Shareholders' equity to assets........... 5.08 5.43 5.17 5.73 6.63 6.83 4.64
Net interest rate spread................. 3.68 3.45 3.47 3.43 3.73 3.99 3.47
Net interest margin...................... 3.91 3.69 3.71 3.68 3.95 4.23 3.68
Efficiency ratio......................... 38.15 43.36 42.96 47.57 49.19 49.86 57.42
Nonaccrual loans and real estate owned, net,
as a percentage of total assets........ .99 1.02 .98 1.18 1.64 2.02 2.08
Allowance for possible loan losses as a
percentage of nonaccrual loans......... 69.08 72.90 75.87 70.04 70.23 69.02 54.87
Average interest-earning assets to average
interest-bearing liabilities........... 105.88% 105.95% 105.86% 106.47% 106.82% 107.04% 104.67%
Book value per share(3).................. $7.73 $6.89 $6.84 $6.44 $6.48 $5.87 $N/M(5)
Dividends per share(3)(4)................ .375 .30 .40 .40 .39 .32 .23
Dividend payout ratio(3)(4).............. 23.01% 27.27% 29.85% 76.92% 24.84% 29.36% 25.71%
</TABLE>
20
<PAGE>
<TABLE>
<CAPTION>
JUNE 30, SEPTEMBER 30,
1997 1996 1996 1995 1994(1) 1993(1) 1992(1)
---- ---- ---- ---- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
CUSTOMER SERVICE FACILITIES:
Full service............... 30 29 29 27 26 26 29
Loan production offices..... 7 7 7 6 6 6 7
Executive office............ 1 1 1 1 1 1 1
CAPITAL RATIOS(7)(8):
Core Capital................ 4.75% 4.89% 4.71% 5.33% 4.79% 4.82% 4.29%
Tangible Capital........... 4.75 4.89 4.71 5.33 4.79 4.82 4.29
Risk-Based Capital.......... 11.18 11.00 11.24 12.24 10.56 10.23 9.92
</TABLE>
(1) On January 27, 1995, Hamilton was merged with and into the Company. The
merger was accounted for as a pooling of interests and, accordingly, all
prior periods include the consolidated results of Hamilton.
(2) Reflect certain non-recurring merger-related and restructuring expenses of
approximately $19.0 million incurred by the Company during the fiscal year
ended September 30, 1995, in connection with the acquisition of Hamilton.
(3) Per share amounts have been calculated to fully reflect the 4-for-3 stock
split effective July 24, 1997, the 3-for-2 stock splits effective January
23, 1997, July 29, 1993 and October 22, 1992 and the ten percent stock
dividend effective February 14, 1994.
(4) Dividends per share and the dividend payout ratio have not been restated for
the merger with Hamilton.
(5) N/M - Hamilton converted to stock ownership on April 1, 1993. Accordingly,
restated per share data is not meaningful.
(6) Includes only the retained earnings of Hamilton Federal Savings, F.A., which
converted from mutual to stock ownership on April 1, 1993.
(7) Capital ratios prior to the merger with Hamilton on January 27, 1995, are
those of Home Federal Savings Bank.
(8) Under current capital adequacy guidelines of the OTS, to remain "adequately
capitalized," the Bank is required to maintain a Total Risk-Based Capital
ratio of 8.0% or greater, a Tier 1 Risk-Based Capital ratio of 4.0% or
greater, and a Tier 1(core) Capital ratio of 4.0% or greater.
21
<PAGE>
THE TRUST
The Trust is a statutory business trust created under Delaware law pursuant
to (i) a declaration of trust, dated as of August 28, 1997 executed by the
Company, as Sponsor, the Initial Trustee, the Delaware Trustee and the Property
Trustee named therein (the "Initial Declaration"), and (ii) the filing of a
certificate of trust with the Secretary of State of the State of Delaware on
August 28, 1997. The Initial Declaration will be replaced by the Declaration.
The Trust exists for the exclusive purposes of (i) issuing and selling the Trust
Securities, which represent undivided beneficial interests in the assets of the
Trust, (ii) investing the gross proceeds from the sale of the Trust Securities
in the Junior Subordinated Debentures and (iii) engaging in only those other
activities necessary, advisable or incidental thereto. Accordingly, the Junior
Subordinated Debentures will be the sole assets of the Trust and payments under
the Junior Subordinated Debentures will be the sole revenues of the Trust. All
of the Common Securities will be owned directly by the Company. The Common
Securities will rank pari passu, and payments will be made thereon pro rata,
with the Capital Securities, except that upon the occurrence and during the
continuance of an Event of Default (as defined herein), the rights of the
Company as holder of the Common Securities to payments in respect of
distributions and payments upon liquidation, redemption or otherwise will be
subordinated and rank junior to the rights of the holders of the Capital
Securities. See "Description of Capital Securities -- Subordination of Common
Securities." The Company will acquire Common Securities in a Liquidation Amount
equal to approximately, but not less than, 3% of the total capital of the Trust.
The Trust has a term of 31 years, but may dissolve earlier as provided in the
Declaration. The Trust's business and affairs will be conducted by the Issuer
Trustees and the Administrators, appointed by the Company as the direct holder
of the Common Securities. The Issuer Trustees will be The Bank of New York as
the Property Trustee and The Bank of New York (Delaware) as the Delaware
Trustee. The Bank of New York, as Property Trustee, will act as sole indenture
trustee under the Declaration. The Bank of New York also will act as trustee
under the Guarantee and the Indenture. See "Description of the Guarantee" and
"Description of Junior Convertible Subordinated Debentures." The holder of the
Common Securities or, if an Event of Default under the Declaration has occurred
and is continuing, the holders of a majority in Liquidation Amount of the
Capital Securities, will be entitled to appoint, remove or replace the Property
Trustee and/or the Delaware Trustee. In no event will the holders of the Capital
Securities have the right to vote to appoint, remove or replace the
Administrators; such voting rights will be vested exclusively in the holder of
the Common Securities. The duties and obligations of each Issuer Trustee and the
Administrators are governed by the Declaration. The Company will pay directly
all fees, expenses, debts and obligations (other than the Trust Securities)
related to the Trust and the offering of the Capital Securities, including all
ongoing costs, expenses and liabilities of the Trust. The principal executive
office of the Trust is New York Bancorp Capital Trust, c/o New York Bancorp
Inc., 241-02 Northern Boulevard, Douglaston, New York 11362, Attention: Chief
Executive Officer. Under the Declaration, all parties to the Declaration will
agree, and the holders of the Capital Securities upon purchase of their Capital
Securities will be deemed to have agreed, for United States income tax purposes,
to treat the Trust as a grantor trust, the Junior Subordinated Debentures as
indebtedness and the Capital Securities as evidence of indirect beneficial
ownership in the Junior Subordinated Debentures.
DESCRIPTION OF CAPITAL SECURITIES
The Capital Securities will represent preferred undivided beneficial
interests in the assets of the Trust and the holders thereof will be entitled to
a preference over the Common Securities in certain circumstances with respect to
Distributions and amounts payable on redemption of the Trust Securities or
liquidation of the Trust. See "-Subordination of Common Securities" below. The
Declaration will be qualified as an indenture under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). The following description does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, the Declaration and the Trust Indenture Act. Certain capitalized
terms used herein are defined in the Declaration.
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GENERAL
The Capital Securities will be limited to $50,000,000 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" below. Legal title to
the Junior Subordinated Debentures will be held by the Property Trustee in trust
for the benefit of the holders of the Capital Securities and the Common
Securities. The Guarantee will not guarantee payment of Distributions or amounts
payable on redemption of the Capital Securities or liquidation of the Trust when
the Trust does not have funds on hand legally available for such payments. See
"Description of the Guarantee."
DISTRIBUTIONS
Distributions on the Capital Securities will be cumulative, will accumulate
from the Issue Date and will be payable quarterly in arrears on January 31,
April 30, July 31 and October 31 of each year, commencing January 31, 1998, at
the annual rate of 8.00% of the Liquidation Amount to the holders of the Capital
Securities on the relevant record dates. The record dates will be the fifteenth
day of the month in which the relevant Distribution Date (as defined herein)
falls (each, a "Distribution Record Date"). The amount of Distributions payable
for any period will be computed on the basis of a 360-day year of twelve 30-day
months and, for any period of less than a full calendar month, the number of
days elapsed in such month. In the event that any date on which Distributions
are payable on the 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 interest or other payment
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 New York, New York or Douglaston, New York are
authorized or required by law or executive order to close.
So long as no Debenture Event of Default shall have occurred and be
continuing, the Company will have the right under the Indenture to elect to
defer the payment of interest on the Junior Subordinated Debentures at any time
and from time to time for a period not exceeding 20 consecutive quarters with
respect to each Extension Period, provided that no Extension Period will end on
a day other than an interest payment date for the Junior Subordinated Debentures
or extend beyond the Stated Maturity Date. Upon any such election, quarterly
Distributions on the Capital Securities will be deferred by the Trust during
such Extension Period. Distributions to which holders of the Capital Securities
are entitled during any such Extension Period will accumulate additional
Distributions thereon at the rate per annum of 8.00% thereof, compounded
quarterly from the relevant Distribution Date, to the extent permitted by
applicable law. The term "Distributions," as used herein, shall include any such
additional Distributions.
During any such Extension Period, the Company may extend such Extension
Period, provided that such extension does not cause such Extension Period to
exceed 20 consecutive quarters or to extend beyond the Stated Maturity Date.
Upon the termination of any such Extension Period and the payment of all amounts
then due, and subject to the foregoing limitations, the Company may elect to
begin a new Extension Period. The Company must give the Property Trustee, the
Administrators and the Debenture Trustee notice of its election of any Extension
Period or any extension thereof 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 or extend such Extension Period and
(ii) the date the Administrators are required to give notice to any securities
exchange or to holders of the Capital Securities of the Distribution 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. See "Description
of Junior Convertible Subordinated Debentures -- Option to Extend Interest
Payment Date" and "Certain Federal Income Tax Considerations -- Interest,
Original Issue Discount, Premium and Market Discount."
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During any such Extension Period, the Company may not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital stock or (ii)
make any payment of principal of or premium, if any, or interest on or repay,
repurchase or redeem any debt securities of the Company (including Other
Debentures) that rank pari passu with or junior in right of payment to the
Junior Subordinated Debentures or (iii) make any guarantee payments with respect
to any guarantee by the Company of any securities of any subsidiary of the
Company (including guarantees issued with respect to capital securities to Other
Trusts ("Other Guarantees")) if such guarantee ranks pari passu with or junior
in right of payment to the Junior Subordinated Debentures, other than (a)
dividends or distributions in shares of, or options, warrants or rights to
subscribe for or purchase shares of, Common Stock or preferred 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 Guarantee, (d) as a direct result of, and only to the
extent required in order to avoid the issuance of fractional shares of capital
stock following, 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, (e) 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, and (f) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Company's benefit plans for
its directors, officers or employees or any of the Company's dividend
reinvestment plans.
The Company believes that, as a result of its inability to pay any dividends
or distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, its Common Stock during an Extension Period and the additional
restrictions imposed upon it to the extent described under "Description of
Junior Convertible Subordinated Debentures -- Option to Extend Interest Payment
Date," the likelihood of its exercising its right to defer payments of interest
is remote and it has no such current intention. However, the Company reserves
the right in the future to exercise its option to defer payments of interest on
the Junior Subordinated Debentures. See "Risk Factors -- Option to Extend
Interest Payment Period; Tax Considerations."
The revenue of the Trust available for distribution to holders of the
Capital Securities will be limited to payments under the Junior Subordinated
Debentures in which the Trust will invest the proceeds from the issuance and
sale of the Trust Securities. See "Description of Junior Convertible
Subordinated Debentures -- General." If the Company does not make interest
payments on the Junior Subordinated Debentures, the Property Trustee will not
have funds available to pay Distributions on the Capital Securities. The payment
of Distributions (if and only to the extent the Trust has funds on hand legally
available for the payment of such Distributions) will be guaranteed by the
Company on a limited basis as set forth herein under "Description of the
Guarantee."
CONVERSION RIGHTS
General. Capital Securities will be convertible at any time prior to the
earlier of (i) 5:00 p.m. (New York City time) on the Business Day immediately
preceding the date of repayment of such Capital Securities, whether at maturity
or upon redemption, and (ii) 5:00 p.m. (New York City time) on the Conversion
Termination Date (if any), at the option of the holders thereof and in the
manner described below, into a number of shares of Common Stock that equals the
quotient obtained by dividing (i) $25 divided by (ii) the Conversion Price
referred to on the cover page of this Prospectus, subject to adjustment as
described below under "-- Conversion Price Adjustments." The Trust will covenant
in the Declaration not to convert Junior Subordinated Debentures held by it
except pursuant to a notice of conversion delivered to the Property Trustee, as
initial conversion agent (the "Conversion Agent"), by a holder of Capital
Securities.
A holder of Capital Securities wishing to exercise its conversion right will
be required to deliver an irrevocable conversion request, together with the
certificate evidencing such Capital Security, to the Conversion Agent which will
exchange such Capital Security for an equivalent amount of the Junior
Subordinated Debentures (based on an exchange ratio of $25.00 principal amount
of Junior Subordinated Debentures for each $25.00
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Liquidation Amount of Capital Securities) on behalf of such holder and
immediately convert such Junior Subordinated Debentures into Common Stock.
Holders may obtain copies of the required form of the conversion request from
the Conversion Agent.
Holders of Capital Securities at 5:00 p.m. (New York City time) on a
Distribution Record Date will be entitled to receive the Distribution payable on
such Capital Securities on the corresponding Distribution Date notwithstanding
the conversion of such Capital Securities following such Distribution Record
Date but on or prior to such Distribution Date. Except as provided in the
immediately preceding sentence, neither the Trust nor the Company will make, or
be required to make, any payment, allowance or adjustment for accumulated and
unpaid Distributions, whether or not in arrears, on converted Capital
Securities; provided, however, that if notice of redemption of Capital
Securities is mailed or otherwise given to holders of Capital Securities or the
Trust issues a press release announcing a Conversion Termination Date, then, if
any holder of Capital Securities converts any Capital Securities into Common
Stock on any date on or after the date on which such notice of redemption is
mailed or otherwise given or the date of such press release, as the case may be,
and if such date of conversion falls on any day from and including the first day
of an Extension Period and on or prior to the Distribution Date upon which such
Extension Period ends, such converting holder shall be entitled to receive
either (i) if the date of such conversion falls after a Distribution Record Date
and on or prior to the next succeeding Distribution Date, all accrued and unpaid
Distributions on such Capital Securities (including interest thereon, if any, to
the extent permitted by applicable law) to such Distribution Date or (ii) if the
date of such conversion does not fall on a date described in clause (i) above,
all accrued and unpaid Distributions on such Capital Securities (including
interest thereon, if any, to the extent permitted by applicable law) to the most
recent Distribution Date prior to the date of such conversion, which
Distributions shall, in either such case, be paid to such converting holder
unless the date of conversion of such Capital Securities is on or prior to the
Distribution Date upon which such Extension Period ends and after the
Distribution Record Date for such Distribution Date, in which case such
Distributions shall be paid to the person who was the holder of such Capital
Securities (or one or more predecessor Capital Securities) at 5:00 p.m. (New
York City time) on such Distribution Record Date. The Company will make no
payment or allowance for distributions on the shares of Common Stock issued upon
such conversion, except to the extent that such shares of Common Stock are held
of record on the record date for any such distributions. Each conversion will be
deemed to have been effected immediately prior to 5:00 p.m. (New York City time)
on the day on which the related conversion request was received by the
Conversion Agent.
No fractional shares of Common Stock will be issued as a result of
conversion, but in lieu thereof such fractional interest will be paid by the
Company in cash based on the Closing Price of the Common Stock on the date such
Capital Securities are converted.
Conversion Price Adjustments -- General. The Conversion Price is subject to
adjustment in certain events, including (a) the issuance after the Issue Date of
shares of Common Stock as a dividend or a distribution with respect to Common
Stock, (b) subdivisions, combinations and reclassification of Common Stock
effected after the Issue Date, (c) the issuance to all holders of Common Stock
after the Issue Date of rights or warrants entitling them (for a period not
exceeding 45 days) to subscribe for or purchase shares of Common Stock at less
than the then Current Market Price (as defined below) of the Common Stock, (d)
the distribution to all holders of Common Stock after the Issue Date of
evidences of indebtedness, capital stock, cash or assets (including securities,
but excluding those rights, warrants, dividends and distributions referred to
above and dividends and distributions paid exclusively in cash), (e) the payment
of dividends (and other distributions) on Common Stock after the Issue Date paid
exclusively in cash, excluding cash dividends if the annualized per share amount
thereof does not exceed 15% of the Current Market Price of Common Stock as of
the trading day immediately preceding the date of declaration of such dividend,
and (f) payment to holders of Common Stock after the Issue Date in respect of a
tender or exchange offer (other than an odd-lot offer) by the Company for Common
Stock at a price in excess of 110% of the then Current Market Price of Common
Stock as of the trading day next succeeding the last date tenders or exchanges
may be made pursuant to such tender or exchange offer.
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"Current Market Price" means, in general, the average of the daily Closing
Prices (as defined below) for the five consecutive trading days selected by the
Company commencing not more than 20 trading days before, and ending not later
than, the earlier of the day in question or, if applicable, the day before the
"ex" date (as defined) with respect to the issuance or distribution in question.
The Company from time to time may reduce the conversion price of the Junior
Subordinated Debentures (and thus the Conversion Price of the Capital
Securities) by any amount selected by the Company for any period of at least 20
days, in which case the Company shall give at least 15 days' notice of such
reduction. The Company may, at its option, make such reductions in the
Conversion Price, in addition to those set forth above, as the Company deems
advisable to avoid or diminish any income tax to holders of Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes. See "Certain
Federal Income Tax Considerations -- Adjustment of Conversion Price."
No adjustment of the Conversion Price will be made upon the issuance of any
shares of Common Stock pursuant to any present or future plan providing for the
reinvestment of dividends or interest payable on securities of the Company and
the investment of additional optional amounts in shares of Common Stock under
any such plan, or upon the issuance of any shares of Common Stock or options or
rights pursuant to any employee benefit plan or program, or pursuant to any
option, warrant, right or any exercisable, exchangeable or convertible security
outstanding as of the date on which the Junior Subordinated Debentures are first
issued. No adjustment of the Conversion Price will be made upon the issuance of
rights under any shareholder rights plan. No adjustment in the Conversion Price
will be required unless adjustment would require a change of at least one
percent (1%) in the price then in effect; provided, however, that any adjustment
that would not be required to be made shall be carried forward and taken into
account in any subsequent adjustment. If any action would require adjustment of
the Conversion Price pursuant to more than one of the provisions described
above, only one adjustment shall be made with respect to that action and such
adjustment shall be the amount of adjustment that has the highest absolute value
to the holder of the Capital Securities.
Conversion Price Adjustment -- Merger, Consolidation or Sale of Assets of
the Company. In the event that the Company shall be a party to any transaction,
including, without limitation, and with certain exceptions, (a) a
recapitalization or reclassification of the Common Stock, (b) consolidation of
the Company with, or merger of the Company into, any other person, or any merger
of another person into the Company, (c) any sale, transfer or lease of all or
substantially all of the assets of the Company or (d) any compulsory share
exchange pursuant to which the Common Stock is converted into the right to
receive other securities, cash or other property (each of the foregoing being
referred to as a "Transaction"), then the holders of Capital Securities then
outstanding will have the right to convert the Capital Securities into the kind
and amount of securities, cash or other property receivable upon the
consummation of such Transaction by a holder of the number of shares of Common
Stock issuable upon conversion of such Capital Securities immediately prior to
such Transaction.
In the case of a Transaction, each Capital Security would become convertible
into the securities, cash or property receivable by a holder of the number of
shares of the Common Stock into which such Capital Security was convertible
immediately prior to such Transaction. This change could substantially lessen or
eliminate the value of the conversion privilege associated with the Capital
Securities in the future. For example, if the Company were acquired in a cash
merger, each Capital Security would become convertible solely into cash and
would no longer be convertible into securities which value would vary depending
on the future prospects of the Company and other factors.
Conversion Price adjustments or omissions in making such adjustments may,
under certain circumstances, be deemed to be distributions that could be taxable
as dividends to holders of Capital Securities or to the holders of Common Stock.
See "Certain Federal Income Tax Considerations -- Adjustment of Conversion
Price."
Termination of Conversion Rights. In addition to the rights of the Company
to redeem the Capital Securities under the circumstances described in this
Prospectus, the Company also will have the right to terminate the
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convertibility of the Capital Securities into Common Stock as described in this
paragraph. On and after October 31, 2001 and provided the Trust is current in
the payment of Distributions on the Capital Securities (except to the extent
that the payment of Distributions may have been duly deferred as the result of
an Extension Period), the Company may, at its option, terminate the right to
convert the Junior Subordinated Debentures into Common Stock, in which case the
right to convert the Capital Securities into Common Stock will likewise
terminate. The Company may exercise this option only if for at least 20 trading
days within any period of 30 consecutive trading days ending on or after October
31, 2001, including the last trading day of such period, the Closing Price of
the Common Stock exceeds 110% of the then applicable Conversion Price of the
Capital Securities. To exercise this conversion termination option, the Company
must cause the Trust to issue a press release for publication on the Dow Jones
News Service or on a comparable news service announcing the Conversion
Termination Date prior to the opening of business on the second trading day
after a period in which the condition in the preceding sentence has been met,
but in no event may such press release be issued prior to October 31, 2001. The
press release shall announce the Conversion Termination Date and provide the
Conversion Price and the Closing Price of the Capital Securities and the Common
Stock, in each case as of the close of business on the trading day next
preceding the date of the press release.
Notice of the termination of conversion rights will be given by first-class
mail to the holders of the Capital Securities not more than four Business Days
after the Trust issues the press release. The Conversion Termination Date will
be a Business Day selected by the Company not less than 30 nor more than 60 days
after the date on which the Trust issues the press release announcing its
intention to terminate conversion rights of Capital Security holders. In the
event that the Company exercises its conversion termination option, conversion
rights will expire at 5:00 p.m. (New York City time) on the Conversion
Termination Date. In the event the Company has not exercised its conversion
termination option and the Capital Securities are otherwise called for
redemption, the Capital Securities will be convertible at any time prior to 5:00
p.m. (New York City time) on the Business Day immediately preceding the date of
such redemption.
"Closing Price" of any security on any day means the last reported sale
price, regular way, on such day or, if no sale takes place on such day, the
average of the reported closing bid and asked prices on such day, regular way,
in either case as reported on the NYSE Composite Tape, or, if such security is
not listed or admitted to trading on the NYSE, on the principal national
securities exchange on which such security is listed or admitted to trading, or
if such security is not listed or admitted to trading on a national securities
exchange, on the National Market System of the National Association of
Securities Dealers, Inc. or, if such security is not quoted or admitted to
trading on such quotation system, on the principal quotation system on which
such security is listed or admitted to trading or quoted, or, if not listed or
admitted to trading or quoted on any national securities exchange or quotation
system, the average of the closing bid and asked prices of such security in the
over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similar generally accepted reporting
service, or, if not so available in such manner, as furnished by any NYSE member
firm selected from time to time by the Board of Directors of the Company for
that purpose or, if not so available in such manner, as otherwise determined in
good faith by the Board of Directors of the Company.
REDEMPTION
Upon the repayment on the Stated Maturity Date or prepayment prior to the
Stated Maturity Date of the Junior Subordinated Debentures, the proceeds from
such repayment or prepayment shall be applied by the Property Trustee to redeem
a Like Amount (as defined below) of the 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 Junior Subordinated Debentures on the Stated Maturity Date, the
Maturity Redemption Price (equal to the principal of and accrued and unpaid
interest on the Junior Subordinated Debentures), (ii) in the case of the
optional prepayment of the Junior Subordinated Debentures upon the occurrence
and continuation of a Special Event, the Special Event Redemption Price (equal
to the Special Event Prepayment Price in respect of the Junior Subordinated
Debentures) and (iii) in the case of the optional prepayment of the Junior
Subordinated Debentures other than as contemplated in clause (ii) above, the
Optional
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Redemption Price (equal to the Optional Prepayment Price in respect of the
Junior Subordinated Debentures). See "Description of Junior Convertible
Subordinated Debentures -- Optional Prepayment" and "-- Special Event
Prepayment."
"Like Amount" means (i) with respect to a redemption of the Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Junior Subordinated Debentures to be paid in accordance with their
terms and (ii) with respect to a distribution of Junior Subordinated Debentures
upon the liquidation of the Trust, Junior Subordinated Debentures having a
principal amount equal to the Liquidation Amount of the Trust Securities of the
holder to whom such Junior Subordinated Debentures are distributed.
The Company will have the option to prepay the Junior Subordinated
Debentures, (i) in whole or in part, on or after the Initial Optional Prepayment
Date, at the applicable Optional Prepayment Price and (ii) in whole but not in
part, at any time, upon the occurrence of a Special Event, at the Special Event
Prepayment Price.
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES
The Company will have the right at any time to dissolve the Trust and cause
the Junior Subordinated Debentures to be distributed to the holders of the Trust
Securities in liquidation of the Trust, subject to satisfaction of liabilities
to creditors of the Trust as provided by applicable law. Such right is subject
to the receipt by the Company of any required regulatory approval and to the
Company having received an opinion of counsel to the effect that such
distribution will not be a taxable event to holders of Capital Securities.
The Trust shall automatically dissolve upon the first to occur of: (i)
certain events of bankruptcy, dissolution or liquidation of the Company or the
Trust, (ii) the distribution of a Like Amount of the Junior Subordinated
Debentures to the holders of the Trust Securities, if the Company, as holder of
the Common Securities, has given written direction to the Property Trustee to
dissolve the Trust (which direction is optional and, except as described above,
wholly within the discretion of the Company, as holder of the Common
Securities), (iii) redemption of all of the Trust Securities as described under
"-- Redemption" above, (iv) expiration of the term of the Trust and (v) the
entry of an order for the dissolution of the Trust by a court of competent
jurisdiction.
If a dissolution occurs as described in clause (i), (ii), (iv), or (v) of
the preceding paragraph, the Trust will be liquidated by the Administrators as
expeditiously as practicable by distributing, after satisfaction of liabilities
to creditors of the Trust as provided by applicable law, to the holders of the
Trust Securities a Like Amount of the Junior Subordinated Debentures, in which
event such holders will be entitled to receive out of the assets of the Trust
legally available for distribution to holders, after satisfaction of liabilities
to creditors of the Trust as provided by applicable law, an amount equal to the
aggregate of the Liquidation Amount plus accumulated and unpaid Distributions
thereon to the date of payment (such amount being the "Liquidation
Distribution"). If the Liquidation Distribution can be paid only in part because
the Trust has insufficient assets on hand legally available to pay in full the
aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Capital Securities and the Common Securities shall be paid on a pro
rata basis, 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" below.
After the liquidation date is fixed for any distribution of Junior
Subordinated Debentures to holders of the Trust Securities, (i) the Trust
Securities will no longer be deemed to be outstanding, and (ii) any certificates
representing Trust Securities will be deemed to represent Junior Subordinated
Debentures having a principal amount equal to the Liquidation Amount of such
Trust Securities, and bearing accrued and unpaid interest in an amount equal to
the accumulated and unpaid Distributions on such Trust Securities until such
certificates are presented to the Administrators or their agent for
cancellation, whereupon the Company will issue to such holder, and the Debenture
Trustee will authenticate, a certificate representing such Junior Subordinated
Debentures.
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There can be no assurance as to the market prices for the Capital Securities
or, if a dissolution and liquidation of the Trust were to occur, for the Junior
Subordinated Debentures that may be distributed in exchange for the Trust
Securities. Accordingly, the Capital Securities that an investor may purchase,
or the Junior Subordinated Debentures 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.
REDEMPTION PROCEDURES
If applicable, Trust Securities shall be redeemed at the applicable
Redemption Price with the proceeds from the contemporaneous repayment or
prepayment of the Junior Subordinated Debentures. Any redemption of Trust
Securities shall be made and the applicable Redemption Price shall be payable on
the Redemption Date only to the extent that the Trust has funds legally
available for the payment of such applicable Redemption Price. See also
"--Subordination of Common Securities" below.
If the Trust gives a notice of redemption in respect of the Capital
Securities, then the Property Trustee, to the extent funds are legally
available, will give irrevocable instructions and authority to the Paying Agent
and will irrevocably deposit with the Paying Agent for the Capital Securities
funds sufficient to pay or cause the Paying Agent to pay the applicable
Redemption Price to the holders thereof upon surrender of their certificates
evidencing the Capital Securities. See "-- Payment and Paying Agency" below.
Distributions payable on or prior to the Redemption Date shall be payable to the
holders of such Capital Securities on the relevant Distribution Record Dates for
the related Distribution Dates. If notice of redemption shall have been given
and funds deposited with the Property Trustee to pay the Redemption Price for
the Capital Securities called for redemption, then all rights of the holders of
such Capital Securities will cease, except the right of the holders of such
Capital Securities to receive the applicable Redemption Price (without interest
on such Redemption Price) or to convert the holder's Capital Securities into
Common Stock as described under "-Conversion Rights" above and such Capital
Securities will cease to be outstanding. In the event that any Redemption Date
is not a Business Day, then the applicable Redemption Price payable on such date
will be paid on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay). 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 Company pursuant to the Guarantee as
described under "Description of the Guarantee," (i) Distributions on Capital
Securities called for redemption will accumulate on the Redemption Price at the
then applicable rate, from the Redemption Date originally established by the
Trust to the date such applicable Redemption Price is actually paid, and (ii)
the actual payment date will be the Redemption Date for purposes of calculating
the applicable Redemption Price.
Subject to applicable law (including, without limitation, United States
federal securities law and the regulations of the OTS), the Company 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 prior to the Redemption Date to each holder of Trust Securities at its
registered address. Unless the Company defaults in payment of the applicable
Prepayment Price on, or in the repayment of, the Junior Subordinated Debentures,
on and after the Redemption Date Distributions will cease to accrue on the Trust
Securities called for redemption.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, the Capital
Securities and the Common Securities, as applicable, shall be made pro rata
based on the Liquidation Amount of the Capital Securities and Common Securities;
provided, however, that if on any Distribution Date or Redemption Date a
Debenture Event of Default 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 the Common Securities, shall be made unless payment in full
in cash of all accumulated and unpaid Distributions
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on all of the outstanding Capital Securities for all Distribution periods
terminating on or prior thereto or, in the case of Capital Securities called for
redemption on a Redemption Date on or prior thereto, the full amount of the
Redemption Price therefor, 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 Redemption Price of, the Capital Securities
then due and payable.
In the case of any Event of Default, the Company as holder of the Common
Securities will be deemed to have waived any right to act with respect to such
Event of Default until the effect of such Event of Default shall have been
cured, waived or otherwise eliminated. Until any such Event of Default has 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
Company 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
The occurrence of a Debenture Event of Default (see "Description of Junior
Convertible Subordinated Debentures -- Debenture Events of Default") constitutes
an "Event of Default" under the Declaration.
Within 10 business days after the occurrence of any Event of Default
actually known to the Company, the Company shall transmit notice of such Event
of Default to the holders of the Capital Securities, the Administrators and the
Property Trustee, unless such Event of Default shall have been cured or waived.
The Company, as Sponsor, and the Administrators 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 has occurred and is continuing, the Capital
Securities shall have a preference over the Common Securities as described under
" -- Liquidation of the Trust and Distribution of Junior Subordinated
Debentures" and " -- Subordination of Common Securities" above.
REMOVAL OF ISSUER TRUSTEES AND ADMINISTRATORS
Unless a Debenture Event of Default shall have occurred and be continuing,
any Issuer Trustee or Administrator 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 Administrators, which voting
rights are vested exclusively in the Company as the holder of the Common
Securities. No resignation or removal of an Issuer Trustee or Administrator and
no appointment of a successor trustee or administrator shall be effective until
the acceptance of appointment by the successor trustee or administrator in
accordance with the provisions of the Declaration.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES AND ADMINISTRATORS
Any entity into which the Property Trustee, the Delaware Trustee or any
Administrator that is not a natural person may be merged or converted or with
which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which such Issuer Trustee or Administrator shall
be a party, or any entity succeeding to all or substantially all the corporate
trust business of such Issuer Trustee or Administrator, shall be the successor
of such Issuer Trustee or Administrator under the Declaration, provided such
entity shall be otherwise qualified and eligible.
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MERGERS, CONVERSIONS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST
The Trust may not merge or convert with or into, consolidate, amalgamate, or
be replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any corporation or other Person,
except as described below or as otherwise described in " -- Liquidation of the
Trust and Distribution of Junior Subordinated Debentures." The Trust may, at the
request of the Company, as holder of the Common Securities, but without the
consent of the holders of the Capital Securities, merge or convert with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to a trust
organized as such under the laws of any State; provided, 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 Company expressly
appoints a trustee of such successor entity possessing the same powers and
duties as the Property Trustee with respect to the Junior Subordinated
Debentures, (iii) the Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or other organization on which the Capital Securities are
then listed or quoted, if any, (iv) such merger, conversion, 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,
conversion, 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 (other than any dilution of such holders' interests in the new
entity), (vi) such successor entity has a purpose substantially identical to
that of the Trust, (vii) prior to such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Company has
received an opinion from independent counsel to the Trust experienced in such
matters to the effect that (a) such merger, conversion, 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 (other
than any dilution of such holders' interests in the new entity), and (b)
following such merger, conversion, 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 Company
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 or convert with or into, or be replaced by or convey, transfer
or lease its properties and assets as an entirety or substantially as an
entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge or convert with or into, or replace it if such consolidation,
amalgamation, merger, conversion, replacement, conveyance, transfer or lease
would cause the Trust or the successor entity not to be classified as a grantor
trust for United States federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF THE DECLARATION
Except as provided below and under " -- Mergers, Conversions,
Consolidations, Amalgamations or Replacements of the Trust" above and
"Description of the 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 Company, the
Property Trustee and the Administrators, without the consent of the holders of
the Trust Securities (i) to cure any ambiguity, correct or supplement any
provisions 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
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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 the holders of the Trust Securities. Any
amendments of the Declaration pursuant to the foregoing shall become effective
when notice thereof is given to the holders of the Trust Securities. The
Declaration may be amended by the Issuer Trustees, the Administrators and the
Company (i) with the consent of holders representing a majority (based upon
Liquidation Amount) of the outstanding Trust Securities, and (ii) upon receipt
by the Issuer Trustees and the Administrators of an opinion of counsel to the
effect that such amendment or the exercise of any power granted to the Issuer
Trustees or Administrators 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, provided that, 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 or other payment on the Trust Securities or otherwise
adversely affect the amount of any Distribution or other payment 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.
So long as any Junior Subordinated Debentures are held by the Property
Trustee, 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 Debenture Trustee with respect to
the Junior Subordinated Debentures, (ii) waive certain past defaults under the
Indenture, (iii) exercise any right to rescind or annul a declaration of
acceleration of the maturity of the principal of the Junior Subordinated
Debentures or (iv) consent to any amendment, modification or termination of the
Indenture or the Junior Subordinated Debentures, where such consent shall be
required, without, in each case, obtaining the prior approval of the holders of
a majority in 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 Debentures affected thereby, no
such consent shall be given by the Property Trustee without the prior approval
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 Debentures. 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 such action will not
affect the Trust's status as a grantor trust for United States federal income
tax purposes.
Any required approval of holders of 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 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 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 Company or any affiliate of the Company shall,
for purposes of such vote or consent, be treated as if they were not
outstanding.
PAYMENT AND PAYING AGENCY
Payments in respect of the Capital Securities 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 Company,
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as holder of the Common Securities. The Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Property Trustee and
the Company. In the event that the Property Trustee shall no longer be the
Paying Agent, the Company, as holder of the Common Securities, shall appoint a
successor (which shall be a bank or trust company) to act as Paying Agent.
REGISTRAR, TRANSFER AGENT AND CONVERSION AGENT
The Property Trustee will act as registrar, transfer agent and Conversion
Agent for the Capital Securities.
Registration of transfers of the 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 any Capital Securities (i) during the period starting 15 days
before the mailing of a notice of redemption and ending on the date of such
mailing and (ii) after they have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
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 Company 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 Administrators 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,
so that the Trust will be classified for United States federal income tax
purposes as a grantor trust and so that the Junior Subordinated Debentures will
be treated as indebtedness of the Company for United States federal income tax
purposes. In this connection, the Company and the Administrators are authorized
to take any action, not inconsistent with applicable law, the certificate of
trust of the Trust or the Declaration, that the Company and the Administrators
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, issue debt, execute mortgages or pledge any
of its assets.
DESCRIPTION OF JUNIOR CONVERTIBLE SUBORDINATED DEBENTURES
The Junior Subordinated Debentures are to be issued under an Indenture (the
"Indenture"), between the Company and The Bank of New York, as trustee (the
"Debenture Trustee"). The Indenture will be qualified under the Trust Indenture
Act. This summary of certain terms and provisions of the Junior Subordinated
Debentures 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 the Trust Indenture Act.
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GENERAL
Concurrently with the issuance of the Capital Securities, the Trust will
invest the proceeds thereof, together with the consideration paid by the Company
for the Common Securities, in Junior Subordinated Debentures issued by the
Company. The Junior Subordinated Debentures will bear interest at the annual
rate of 8.00% of the principal amount thereof, payable quarterly in arrears on
January 31, April 30, July 31 and October 31 of each year (each, an "Interest
Payment Date"), commencing January 31, 1998, to the person in whose name each
Junior Subordinated Debenture is registered, subject to certain exceptions, at
the close of business on the fifteenth day of the month in which the relevant
Interest Payment Date falls (each, a "Payment Record Date"). It is anticipated
that, until the liquidation, if any, of the Trust, each Junior Subordinated
Debenture will be held in the name of the Property Trustee in trust for the
benefit of the holders of 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 and, for any period of less than a full calendar month, the number of
days elapsed in such month. In the event that any date on which interest is
payable on the Junior Subordinated Debentures 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 8.00% thereof,
compounded quarterly. The term "interest", as used herein, shall include
quarterly interest payments, interest on quarterly interest payments not paid on
the applicable Interest Payment Date and Additional Sums (as defined herein), as
applicable. The Junior Subordinated Debentures will mature on October 31, 2027
(the "Stated Maturity Date").
The Junior Subordinated Debentures will rank pari passu with all Other
Debentures and will be unsecured and subordinate and rank junior in right of
payment to the extent and in the manner set forth in the Indenture to all Senior
Indebtedness of the Company. See "-- Subordination" below. Because the Company
is a holding company, the right of the Company to participate in any
distribution of assets of any subsidiary upon such subsidiary's liquidation or
reorganization or otherwise (and thus the ability of holders of the Capital
Securities to benefit indirectly from such distribution) is subject to the prior
claims of creditors of that subsidiary (including depositors in the case of the
Bank), except to the extent that the Company may itself be recognized as a
creditor of that subsidiary. At June 30, 1997, the subsidiaries of the Company
had total liabilities (excluding liabilities owed to the Company) of
approximately $3.1 billion, including deposits, in the case of the Bank.
Accordingly, the Capital Securities will be effectively subordinated to all
existing and future liabilities of the Company's subsidiaries, and holders of
Capital Securities should look only to the assets of the Company for payments on
the Capital Securities. The Indenture does not limit the incurrence or issuance
of other secured or unsecured debt of the Company, including Senior
Indebtedness, whether under any other indenture that the Company may enter into
in the future or otherwise, and does not limit the incurrence or issuance of
secured or unsecured debt by the Company's subsidiaries. See "--Subordination"
below.
In addition, as the Company is a non-operating holding company, almost all
of the operating assets of the Company are owned by the Company's subsidiaries.
The Company relies primarily on dividends from such subsidiaries to meet its
obligations for payment of principal and interest on its outstanding debt
obligations, if any, and corporate expenses. The Bank is subject to certain
restrictions imposed by federal law on any extensions of credit to, and certain
other transactions with, the Company and certain other affiliates, and on
investments in stock or other securities thereof. Such restrictions prevent the
Company and such other affiliates from borrowing from the Bank unless the loans
are secured by various types of collateral. Further, such secured loans, other
transactions and investments by the Bank are generally limited in amount as to
the Company and as to each of such other affiliates to 10% of such Bank's
capital and surplus and as to the Company and all of such other affiliates to an
aggregate of 20% of such Bank's capital and surplus. In addition, payment of
dividends to the Company by the Bank is subject to ongoing review by banking
regulators and is subject to various statutory limitations and in certain
circumstances requires prior approval by banking regulatory authorities. In
addition, in 1988 the Bank issued Series A and Series B subordinated capital
notes, and the agreements governing such notes
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restrict the amounts which the Bank can pay to the Company by way of cash
dividends. Under current OTS regulations and restrictions imposed by the Bank's
subordinated indebtedness referred to above, at July 1, 1997, the Bank could
have declared dividends to the Company of approximately $11.5 million, of which
approximately $8.0 million has been subsequently declared and paid to the
Company. Federal and state regulatory agencies also have the authority to limit
further the Bank's payment of dividends based on other factors, such as the
maintenance of adequate capital for the Bank, which could reduce the amount of
dividends otherwise payable.
PAYMENT AND PAYING AGENTS
Payment of principal of and premium, if any, and any interest on Junior
Subordinated Debentures 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 Company may designate from time to time, except that at the option of the
Company payment of any interest may be made (i) by check mailed to the address
of the Person entitled thereto as such address shall appear in the register for
Junior Subordinated Debentures or (ii) by transfer to an account maintained by
the Person entitled thereto as specified in such register, provided that proper
transfer instructions have been received by the relevant Record Date. Payment of
any interest on any Junior Subordinated Debenture will be made to the Person in
whose name such Junior Subordinated Debenture is registered at the close of
business on the Payment Record Date for such interest, except in the case of
defaulted interest. The Company may at any time designate additional Paying
Agents or rescind the designation of any Paying Agent; however the Company will
at all times be required to maintain a Paying Agent in each place of payment for
the Junior Subordinated Debentures.
Any moneys deposited with the Debenture 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 Junior Subordinated Debenture 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 Company, be repaid to the Company
and the holder of such Junior Subordinated Debenture shall thereafter look, as a
general unsecured creditor, only to the Company for payment thereof.
OPTION TO EXTEND INTEREST PAYMENT DATE
So long as no Debenture Event of Default has occurred and is continuing, the
Company will have the right under the Indenture at any time during the term of
the Junior Subordinated Debentures to defer the payment of interest at any time
or from time to time for a period not exceeding 20 consecutive quarters with
respect to each Extension Period, provided that no Extension Period will end on
a day other than an interest payment date for the Junior Subordinated Debentures
or extend beyond the Stated Maturity Date. At the end of an Extension Period,
the Company must pay all interest then accrued and unpaid (together with
interest thereon accrued at the annual rate of 8.00%, compounded quarterly, to
the extent permitted by applicable law). During an Extension Period, interest
will continue to accrue and, if the Junior Subordinated Debentures have been
distributed to holders of the Trust Securities, holders of Junior Subordinated
Debentures (or holders of the Trust Securities while Trust Securities are
outstanding) will be required to accrue OID in respect of the stated interest on
the Capital Securities for United States federal income tax purposes prior to
the receipt of cash attributable to such income. See "Certain Federal Income Tax
Considerations -- Interest, Original Issue Discount, Premium and Market
Discount."
During any such Extension Period, the Company may not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital stock, (ii)
make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company (including any Other
Debentures) that rank pari passu with or junior in right of payment to the
Junior Subordinated Debentures or (iii) make any guarantee payments with respect
to any guarantee by the Company of any securities of any subsidiary of the
Company (including Other Guarantees) if such guarantee ranks pari passu with or
junior in right of payment to the Junior Subordinated Debentures, other than (a)
dividends or distributions in shares of or options, warrants or rights to
subscribe for or purchase shares of, Common Stock or preferred stock of the
Company, (b) any declaration of a dividend in connection with the
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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) as a direct result of,
and only to the extent required in order to avoid the issuance of fractional
shares of capital stock following, 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, (e)
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, and (f) purchases of Common Stock related
to the issuance of Common Stock or rights under any of the Company's benefit
plans for its directors, officers or employees or any of the Company's dividend
reinvestment plans.
Prior to the termination of any such Extension Period, the Company may
further extend such Extension Period, provided that such extension does not
cause such Extension Period to exceed 20 consecutive quarters or to extend
beyond the Stated Maturity Date. Upon the termination of any such Extension
Period and the payment of all amounts 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 Period,
except at the end thereof. The Company must give the Property Trustee, the
Administrators 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 Administrators are required to give notice to any securities
exchange or to holders of Capital Securities of the Distribution 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 Company'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 Company may elect to begin an Extension Period.
OPTIONAL PREPAYMENT
The Junior Subordinated Debentures will be prepayable, in whole or in part,
at the option of the Company, on or after the Initial Optional Prepayment Date,
at a prepayment price (the "Optional Prepayment Price") equal to 100% of the
outstanding principal amount of the Junior Subordinated Debentures to be
prepaid, plus accrued interest thereon to the date of prepayment.
SPECIAL EVENT PREPAYMENT
If a Special Event shall occur and be continuing, the Company may, at any
time prior to or after the Initial Optional Prepayment Date, within 90 days
after the occurrence of the Special Event, at its option, prepay the Junior
Subordinated Debentures in whole, but not in part, at a prepayment price (the
"Special Event Prepayment Price") equal to 100% of the principal amount of such
Junior Subordinated Debentures plus accrued and unpaid interest thereon to the
date of prepayment.
A "Special Event" means a Tax Event, a Regulatory Capital Event or an
Investment Company Event, as the case may be.
A "Tax Event" means (a) the receipt by the Company and the Trust of an
opinion of Weil, Gotshal & Manges LLP or any other nationally recognized tax
counsel experienced in such matters, to the effect that as a result of (i) any
amendment to, clarification of, or change (including any announced prospective
change) in, the laws or any regulations thereunder of the United States or any
political subdivision or taxing authority thereof or therein, (ii) any amendment
to, clarification of, or change in, an interpretation or application of any such
laws or regulations by any legislative body, court, governmental agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination or the
publication of an explanation of legislation by the staff of the Joint Committee
on Taxation), (iii) any interpretation or pronouncement that provides for a
position with respect to such laws or regulations that differs from the
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theretofore generally accepted position or (iv) any judicial decision,
administrative pronouncement, ruling, regulatory procedure, notice, announcement
(including any notice or announcement of intent to adopt procedures or
regulations) or any other actions taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
announced or which interpretation or pronouncement is issued or announced or
which action is taken, in each case, on or after the Issue Date, there is more
than an insubstantial risk that (x) the Trust is or within 90 days will be
subject to United States federal income tax with respect to income received or
accrued on the Junior Subordinated Debentures, (y) interest payable by the
Company on the Junior Subordinated Debentures is not or within 90 days will not
be deductible by the Company, in whole or in part, for United States federal
income tax purposes, or (z) the Trust is or within 90 days will be subject to
more than a de minimis amount of other taxes, duties or other governmental
charges, or (b) a proposed audit adjustment by a taxing authority which, if
sustained, would result in any of the events described in clauses (x), (y) or
(z) above (without regard to the 90 day period referred to therein).
A "Regulatory Capital Event" means the receipt by the Company and the
Trust of an opinion of Weil, Gotshal & Manges LLP or any other 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 OTS, the Board of Governors of the Federal Reserve
System (the "Federal Reserve") or any other federal bank regulatory agency 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, (i) the
Company is or within 90 days will be subject to capital adequacy requirements
and such requirements do not or will not permit the Capital Securities to
constitute, subject to limitations on inclusion of the Capital Securities as
Tier 1 capital imposed by Federal Reserve capital guidelines in effect as of the
date of this Prospectus, Tier 1 capital (or its then-equivalent) or (ii) the
amount of net proceeds received from the sale of the Capital Securities and
contributed by the Company to the Bank does not or within 90 days will not
constitute Tier 1 (core) capital (or its then-equivalent).
An "Investment Company Event" means the receipt by the Company and the
Trust of an opinion of Weil, Gotshal & Manges LLP or any other nationally
recognized counsel experienced in such matters, to the effect that (a) as a
result of any amendment to, or change (including any announced prospective
change) in, the laws or any regulations thereunder of the United States or any
political subdivision or authority thereof or therein 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, there is more
than an insubstantial risk that the Trust is or within 90 days will be
considered an "investment company" that is required to be registered under the
Investment Company Act.
"Additional Sums" means such additional amounts as may be necessary in
order that the amount of Distributions then due and payable by the Trust on the
outstanding Capital Securities and Common Securities shall not be reduced as a
result of any additional taxes, duties or other governmental charges to which
the Trust has become subject as a result of a Tax Event.
Notice of any prepayment will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of Junior Subordinated
Debentures to be prepaid at its registered address. Unless the Company defaults
in payment of the prepayment price, on and after the prepayment date interest
ceases to accrue on such Junior Subordinated Debentures called for prepayment.
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event, the Company will pay as
additional amounts on the Junior Subordinated Debentures the Additional Sums.
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CERTAIN COVENANTS OF THE COMPANY
If (1) a Debenture Event of Default occurs (other than solely a default as
described in paragraph (iii) under "-- Debenture Events of Default" below), (2)
there shall have occurred any event of which the Company has actual knowledge
that (a) with the giving of notice or the lapse of time, or both, would be, a
Debenture Event of Default (other than solely a default as described in
paragraph (iii) under "-- Debenture Events of Default") and (b) in respect of
which the Company shall not have taken reasonable steps to cure, (3) the Company
shall be in default with respect to its payment of any obligations under the
Guarantee or (4) the Company shall have given notice of its election of an
Extension Period, or any extension thereof, as provided in the Indenture and
shall not have rescinded such notice, and such Extension Period, or any
extension thereof, shall have commenced, then 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 or
(ii) make any payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities of the Company (including Other
Debentures) that rank pari passu with or junior in right of payment to the
Junior Subordinated Debentures or (iii) make any guarantee payments with respect
to any guarantee by the Company of any securities of any subsidiary of the
Company (including Other Guarantees) if such guarantee ranks pari passu or
junior in right of payment to the Junior Subordinated Debentures, other than (a)
dividends or distributions in shares of, or options, warrants or rights to
subscribe for or purchase shares of, Common Stock or preferred 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 Guarantee, (d) as a direct result of, and only to the
extent required in order to avoid the issuance of fractional shares of capital
stock following 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, (e) 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, and (f) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Company's benefit plans for
its directors, officers or employees or any of the Company's dividend
reinvestment plans.
The Company will also covenant to (i) maintain 100% ownership of the
Common Securities; provided, however, that any permitted successor of the
Company under the Indenture may succeed to the Company's ownership of the Common
Securities, (ii) use its reasonable efforts to cause the Trust (a) to remain a
statutory business trust, except in connection with the distribution of Junior
Subordinated Debentures to the holders 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
of the Trust, and (b) to continue not to be classified as an association taxable
as a corporation or a partnership for United States federal income tax purposes
and (iii) use its reasonable efforts to cause each holder of Trust Securities to
be treated as owning an undivided beneficial interest in the Junior Subordinated
Debentures.
DEBENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events with respect to the Junior Subordinated Debentures constitutes a
"Debenture Event of Default" (whatever the reason for such Debenture 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) failure for 30 days to pay any interest on the Junior Subordinated
Debentures or any Other Debentures, when due (subject to the deferral of
any due date in the case of an Extension Period); or
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(ii) failure to pay any principal or premium, if any, on the Junior
Subordinated Debentures or any Other Debentures when due whether at
maturity, upon redemption, by declaration of acceleration of maturity 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 Company from the Debenture Trustee or the holders of at
least 25% in aggregate outstanding principal amount of Junior Subordinated
Debentures; or
(iv) certain events in bankruptcy, insolvency or reorganization of
the Company.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debentures 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 Junior Subordinated Debentures may declare
the principal due and payable immediately upon a Debenture Event of Default. The
holders of a majority in aggregate outstanding principal amount of the Junior
Subordinated Debentures may annul such declaration and waive the default if the
default (other than the nonpayment of the principal of the Junior Subordinated
Debentures 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.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debentures affected thereby may, on behalf of the holders of
all the Junior Subordinated Debentures, waive any past default except a default
in the payment of principal of or premium, if any, or interest on, the Junior
Subordinated Debentures (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and premium, if any, and principal
due otherwise than by acceleration has been deposited with the Debenture
Trustee) or a default in respect of a covenant or provision which under the
Indenture cannot be modified or amended without the consent of the holder of
each outstanding Junior Subordinated Debenture.
The Indenture requires the annual filing by the Company with the Debenture
Trustee of a certificate as to the absence of certain defaults under the
Indenture.
The Indenture provides that the Debenture Trustee may withhold notice of a
Debenture Event of Default from the holders of the Junior Subordinated
Debentures (except a Debenture Event of Default in payment of principal of, or
of interest or premium on, the Junior Subordinated Debentures) if the Debenture
Trustee considers it in the interest of such holders to do so.
CONVERSION OF THE JUNIOR SUBORDINATED DEBENTURES
Junior Subordinated Debentures will be convertible at any time prior to
the earlier of (i) 5:00 p.m. (New York City time) on the Business Day
immediately preceding the date of repayment of such Junior Subordinated
Debentures, whether at maturity or upon prepayment, and (ii) 5:00 p.m. (New York
City time) on the Conversion Termination Date (if any), into Common Stock at the
option of the holders of the Junior Subordinated Debentures at the Conversion
Price referred to on the cover page of this Prospectus, subject to the
Conversion Price adjustments described under "Description of Capital Securities
- -- Conversion Rights." The Trust will covenant not to convert Junior
Subordinated Debentures held by it except pursuant to a notice of conversion
delivered to the Conversion Agent by a holder of Capital Securities. Upon
surrender of a Capital Security to the Conversion Agent for conversion, the
Trust will distribute $25.00 principal amount of the Junior Subordinated
Debentures to the Conversion Agent on behalf of the holder of the Capital
Security so converted, whereupon the Conversion Agent will convert such Junior
Subordinated Debentures into Common Stock on behalf of such holder. The
Company's delivery to the holders of the Junior Subordinated Debentures (through
the Conversion Agent) of the fixed number of shares of Common Stock into which
the Junior Subordinated Debentures are convertible (together with the cash
payment, if any, in lieu of fractional shares) will be deemed to
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satisfy the Company's obligation to pay the principal amount of the Junior
Subordinated Debentures so converted, and the accrued and unpaid interest
thereon attributable to the period from the last date to which interest has been
paid or duly provided for; provided, however, that if any Junior Subordinated
Debenture is converted after a Payment Record Date, the interest payable on the
related Interest Payment Date with respect to such Junior Subordinated Debenture
shall be paid to the Trust (which will distribute such interest to the holder of
such Junior Subordinated Debentures on the Payment Record Date) or other holder
of such Junior Subordinated Debenture on the Payment Record Date, as the case
may be, despite such conversion; provided, further, that if notice of prepayment
of Junior Subordinated Debentures is mailed or otherwise given to holders of
Junior Subordinated Debentures or the Trust issues a press release announcing a
Conversion Termination Date, then, if any holder of Junior Subordinated
Debentures converts any Junior Subordinated Debentures into Common Stock on any
date on or after the date on which such notice of prepayment is mailed or
otherwise given or the date of such press release, as the case may be, and if
such date of conversion falls on any day from and including the first day of an
Extension Period and on or prior to the Interest Payment Date on which such
Extension Period ends, such converting holder shall be entitled to receive
either (i) if the date of such conversion falls after a Payment Record Date and
on or prior to the next succeeding Interest Payment Date, all accrued and unpaid
interest on such Junior Subordinated Debentures to such Interest Payment Date or
(ii) if the date of such conversion does not fall on a date described in clause
(i) above, all accrued and unpaid interest on such Junior Subordinated
Debentures to the most recent Interest Payment Date prior to the date of such
conversion, which interest shall, in either such case, be paid to such
converting holder, unless the date of conversion of such Junior Subordinated
Debentures is on or prior to the Interest Payment Date upon which such Extension
Period ends and after the Payment Record Date for such Interest Payment Date, in
which case such interest shall be paid to the person who was the holder of such
Junior Subordinated Debentures (or one or more predecessor Junior Subordinated
Debentures) at 5:00 p.m. (New York City time) on such Payment Record Date, which
amount shall be simultaneously distributed to the holders of the Capital
Securities so that any holder of Capital Securities who delivers such Capital
Securities for conversion (or who held such converted Capital Securities at 5:00
p.m. (New York City time) on the Payment Record Date for the Interest Payment
Date upon which such Extension Period ends, as the case may be) under the
circumstances and during the periods described above will be entitled to receive
accumulated and unpaid Distributions in a corresponding amount. See "Description
of Capital Securities -- Conversion Rights" and "-- Redemption."
On and after October 31, 2001, the Company may, at its option, terminate
the conversion rights of holders of the Junior Subordinated Debentures if (i)
the Company is then current in the payment of interest on the Junior
Subordinated Debentures (except to the extent that the payment of interest has
been duly deferred as the result of an Extension Period) and (ii) for at least
20 trading days within any period of 30 consecutive trading days ending on or
after October 31, 2001, including the last trading day of such period, the
Closing Price of the Common Stock shall have exceeded 110% of the then
applicable Conversion Price of the Junior Subordinated Debentures. In order to
exercise this conversion termination option, the Company must cause the Trust to
issue (or, if the Junior Subordinated Debentures shall have been distributed to
holders of the Capital Securities following a Special Event, the Company must
issue) a press release for publication on the Dow Jones News Service or on a
comparable news service announcing the Conversion Termination Date prior to the
opening of business on the second trading day after a period in which the
condition in the preceding sentence has been met, but in no event prior to
October 31, 2001. The press release shall announce the Conversion Termination
Date and provide the Conversion Price and the Closing Price of the Capital
Securities and the Common Stock, in each case as of the close of business on the
trading day next preceding the date of the press release. The Company is also
required to give notice by first-class mail to holders of the Junior
Subordinated Debentures in the manner provided for holders of Capital Securities
under "Description of Capital Securities -- Conversion Rights -- Termination of
Conversion Rights." The Conversion Termination Date will be a Business Day
selected by the Company which is not less than 30 nor more than 60 calendar days
after the date on which such press release is issued. In the event that the
Company exercises its conversion termination option, conversion rights will
expire at 5:00 p.m. (New York City time) on the Conversion Termination Date. In
the event that the Company has not exercised its conversion termination option
and the Junior Subordinated Debentures are otherwise called for prepayment, the
Junior Subordinated Debentures will be convertible at any time prior to 5:00
p.m. (New York City time) on the Business
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Day immediately preceding the date of such redemption and in any other case at
any time prior to 5:00 p.m. (New York City time) on the Business Day immediately
preceding the Stated Maturity Date of the Junior Subordinated Debentures.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a Debenture Event of Default shall have occurred and be continuing and
shall be attributable to the failure of the Company to pay interest or premium,
if any, on or principal of the Junior Subordinated Debentures on the due date, a
holder of Capital Securities may institute a Direct Action. A holder of Capital
Securities may, to the fullest extent permitted by law, also institute an action
to enforce the rights of the Property Trustee if the Property Trustee fails to
enforce its rights as the holder of the Junior Subordinated Debentures. The
Company may not amend the Indenture to remove the foregoing right to bring a
Direct Action without the prior written consent of the holders of all of the
Capital Securities. Notwithstanding any payments made to a holder of Capital
Securities by the Company in connection with a Direct Action, the Company shall
remain obligated to pay the principal of or premium, if any, or interest on, the
Junior Subordinated Debentures, 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 Direct Action.
The holders of the Capital Securities will not be able to exercise
directly any remedies, other than those set forth in the preceding paragraph,
available to the holders of the Junior Subordinated Debentures. See "Description
of Capital Securities -- Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that the Company shall not consolidate with or
merge into any other Person or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to any Person, and no
Person shall consolidate with or merge into the Company or convey, transfer or
lease its properties and assets as an entirety or substantially as an entirety
to the Company, unless: (i) in case the Company consolidates with or merges 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 Company's obligations on the Junior
Subordinated Debentures, (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, and (iii) certain other conditions as prescribed in the Indenture
are met.
The general provisions of the Indenture do not afford holders of the
Junior Subordinated Debentures protection in the event of a highly leveraged or
other transaction involving the Company that may adversely affect holders of the
Junior Subordinated Debentures.
MODIFICATION OF THE INDENTURE
From time to time the Company and the Debenture Trustee may, without the
consent of the holders of Junior Subordinated Debentures, amend, waive or
supplement the Indenture for specified purposes, including, among other things,
curing ambiguities, defects or inconsistencies; provided that, in any such case,
such action does not materially adversely affect the interest of the holders of
Junior Subordinated Debentures. The Indenture contains provisions permitting the
Company and the Debenture Trustee, with the consent of the holders of a majority
in principal amount of the Junior Subordinated Debentures, to modify the
Indenture in a manner affecting the rights of the holders of Junior Subordinated
Debentures; provided that no such modification may, without the consent of the
holders of each outstanding Junior Subordinated Debenture so affected, (i)
change the Stated Maturity Date, or reduce the principal amount of the Junior
Subordinated Debentures or reduce the rate or extend the time of payment of
interest thereon or (ii) reduce the percentage of principal amount of Junior
Subordinated Debentures the holders of which are required to consent to any such
modification of the Indenture.
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SATISFACTION AND DISCHARGE
The Indenture provides that when, among other things, all Junior
Subordinated Debentures not previously delivered to the Debenture Trustee for
cancellation (i) have become due and payable or (ii) will become due and payable
at maturity within one year, and the Company deposits or causes to be deposited
with the Debenture Trustee funds, in trust, for the purpose and in an amount
sufficient to pay and discharge the entire indebtedness on the Junior
Subordinated Debentures not previously delivered to the Debenture Trustee for
cancellation, for the principal and premium, if any, and interest to the date of
the deposit or to the Stated Maturity Date, as the case may be, then the
Indenture will cease to be of further effect (except as to the Company's
obligations to pay all other sums due pursuant to the Indenture and to provide
the officers' certificates and opinions of counsel described therein), and the
Company will be deemed to have satisfied and discharged the Indenture.
SUBORDINATION
In the Indenture, the Company has agreed that any Junior Subordinated
Debentures issued thereunder will be subordinate and junior in right of payment
to all Senior Indebtedness 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 Company, the holders of Senior Indebtedness will
first be entitled to receive payment in full of all Allocable Amounts (as
defined below) in respect of such Senior Indebtedness before the holders of
Junior Subordinated Debentures will be entitled to receive or retain any payment
in respect thereof.
In the event of the acceleration of the maturity of Junior Subordinated
Debentures, the holders of all Senior Indebtedness outstanding at the time of
such acceleration will first be entitled to receive payment in full of all
Allocable Amounts due in respect of such Senior Indebtedness before the holders
of Junior Subordinated Debentures will be entitled to receive or retain any
payment in respect of the Junior Subordinated Debentures.
No payments on account of principal or premium, if any, or interest, if
any, in respect of the Junior Subordinated Debentures may be made if there shall
have occurred and be continuing a default in any payment with respect to Senior
Indebtedness, or an event of default with respect to any Senior Indebtedness
resulting in the acceleration of the maturity thereof, or if any judicial
proceeding shall be pending with respect to any such default.
"Allocable Amounts," when used with respect to any Senior Indebtedness,
means all amounts due or to become due on such Senior Indebtedness less, if
applicable, any amount which would have been paid to, and retained by, the
holders of such Senior Indebtedness (whether as a result of the receipt of
payments by the holders of such Senior Indebtedness from the Company or any
other obligor thereon or from any holders of, or trustee in respect of, other
indebtedness that is subordinate and junior in right of payment to such Senior
Indebtedness pursuant to any provision of such indebtedness for the payment over
of amounts received on account of such indebtedness to the holders of such
Senior Indebtedness or otherwise) but for the fact that such Senior Indebtedness
is subordinate or junior in right of payment to (or subject to a requirement
that amounts received on such Senior Indebtedness be paid over to obligees on)
trade accounts payable or accrued liabilities arising in the ordinary course of
business.
"Indebtedness" means (i) any obligation of, or any obligation guaranteed
by, the Company for the repayment of borrowed money, whether or not evidenced by
bonds, debentures, notes or other written instruments and any deferred
obligation for the payment of the purchase price of property or assets acquired
other than in the ordinary course of business and (ii) all indebtedness of the
Company for claims in respect of derivative products such as interest and
foreign exchange rate contracts, commodity contracts and similar arrangements,
whether outstanding on the date of execution of the Indenture or thereafter
created, assumed or incurred. For purposes of
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this definition "claim" has the meaning assigned in Section 101(5) of the
Bankruptcy Code of 1978, as amended and in effect on the date of the execution
of the Indenture.
"Indebtedness Ranking on a Parity with the Junior Subordinated Debentures"
means Indebtedness, whether outstanding on the date of execution of the
Indenture or thereafter created, assumed or incurred, which specifically by its
terms ranks equally with and not prior to the Junior Subordinated Debentures in
the right of payment upon the happening of the dissolution or winding-up or
liquidation or reorganization of the Company. The securing of any Indebtedness,
otherwise constituting Indebtedness Ranking on a Parity with the Junior
Subordinated Debentures, shall not be deemed to prevent such Indebtedness from
constituting Indebtedness Ranking on a Parity with the Junior Subordinated
Debentures.
"Indebtedness Ranking Junior to the Junior Subordinated Debentures" means
any Indebtedness, whether outstanding on the date of execution of the Indenture
or thereafter created, assumed or incurred, which specifically by its terms
ranks junior to and not equally with or prior to the Junior Subordinated
Debentures (and any other Indebtedness Ranking on a Parity with the Junior
Subordinated Debentures) in right of payment upon the happening of the
dissolution or winding-up or liquidation or reorganization of the Company. The
securing of any Indebtedness, otherwise constituting Indebtedness Ranking Junior
to the Junior Subordinated Debentures, shall not be deemed to prevent such
Indebtedness from constituting Indebtedness Ranking Junior to the Junior
Subordinated Debentures.
"Senior Indebtedness" means all Indebtedness, whether outstanding on the
date of execution of the Indenture or thereafter created, assumed or incurred,
except Indebtedness Ranking on a Parity with the Junior Subordinated Debentures
or Indebtedness Ranking Junior to the Junior Subordinated Debentures, and any
deferrals, renewals or extensions of such Senior Indebtedness.
The Indenture places no limitation on the amount of additional Senior
Indebtedness that may be incurred by the Company in the future. The Company
expects from time to time to incur additional indebtedness constituting Senior
Indebtedness.
GOVERNING LAW
The Indenture and the Junior Subordinated Debentures will be governed by
and construed in accordance with the laws of the State of New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
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 Junior Subordinated Debentures, unless offered
reasonable indemnity by such holder against the costs, expenses and liabilities
which might be incurred thereby. The Debenture Trustee is not required to expend
or risk its own funds or otherwise incur personal financial liability in the
performance of its duties if the Debenture Trustee reasonably believes that
repayment or adequate indemnity is not reasonably assured to it.
DESCRIPTION OF THE GUARANTEE
The Guarantee will be executed and delivered by the Company concurrently
with the issuance by the Trust of the Capital Securities for the benefit of the
holders from time to time of the Capital Securities. The Bank of New York will
act as indenture trustee ("Guarantee Trustee") under the Guarantee. The
Guarantee will be qualified under the Trust Indenture Act. This summary of
certain provisions of the 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 Guarantee,
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including the definitions therein of certain terms, and the Trust Indenture Act.
The Guarantee Trustee will hold the Guarantee for the benefit of the holders of
the Capital Securities.
GENERAL
The Company will irrevocably agree to pay in full on a subordinated basis,
to the extent set forth herein, the Guarantee Payments (as defined below) to the
holders of the 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 Capital
Securities, to the extent not paid by or on behalf of the Trust (the "Guarantee
Payments"), will be subject to the Guarantee: (i) any accumulated and unpaid
Distributions required to be paid on Capital Securities, to the extent the Trust
has funds on hand legally available therefor, (ii) the Redemption Price with
respect to any Capital Securities called for redemption, to the extent that the
Trust has funds on hand legally available therefor, or (iii) upon a voluntary or
involuntary dissolution and liquidation of the Trust (unless the Junior
Subordinated Debentures are distributed to holders of the Capital Securities),
the lesser of (a) the Liquidation Distribution and (b) the amount of assets of
the Trust remaining available for distribution to holders of Capital Securities.
The Company's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Company to the holders of the Capital
Securities or by causing the Trust to pay such amounts to such holders.
The Guarantee will rank subordinate and junior in right of payment to all
Senior Indebtedness to the extent provided therein. See "-- Status" below.
Because the Company is a holding company, the right of the Company 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 the Company may itself be recognized as a creditor of such
subsidiary. Accordingly, the Company's obligations under the Guarantee
effectively will be subordinated to all existing and future liabilities of its
subsidiaries, including the Bank, and claimants should look only to the assets
of the Company for payments thereunder. See "Description of Junior Convertible
Subordinated Debentures -- General." The Guarantee does not limit the incurrence
or issuance of other secured or unsecured debt of the Company, including Senior
Indebtedness, whether under the Indenture, any other indenture that the Company
may enter into in the future or otherwise, and does not limit the incurrence or
issuance of secured or unsecured debt by the Company's subsidiaries.
The Company will, through the Guarantee, the Declaration, the Junior
Subordinated Debentures and the Indenture, taken together, fully, irrevocably
and unconditionally guarantee all of the Trust's obligations under the 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
Capital Securities. See "Relationship Among the Capital Securities, the Junior
Subordinated Debentures and the Guarantee."
STATUS
The Guarantee will constitute an unsecured obligation of the Company and
will rank subordinate and junior in right of payment to all Senior Indebtedness
in the same manner as the Junior Subordinated Debentures.
The Guarantee will rank pari passu with the Junior Subordinated Debentures
and with all other guarantees (if any) issued by the Company after the Issue
Date with respect to capital securities (if any) issued by Other Trusts. The
Guarantee will constitute a guarantee of payment and not of collection (i.e.,
the guaranteed party may institute a legal proceeding directly against the
Company to enforce its rights under the Guarantee without first instituting a
legal proceeding against any other person or entity). The Guarantee will be held
for the benefit of the holders of the Capital Securities. The 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 Capital
Securities of the Junior Subordinated Debentures. The Guarantee does not place a
limitation on the amount of additional Senior
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Indebtedness that may be incurred by the Company in the future. The Company
expects from time to time to incur additional indebtedness constituting Senior
Indebtedness.
EVENTS OF DEFAULT
An event of default under the Guarantee will occur upon the failure of the
Company to perform any of its payment or other obligations thereunder. The
holders of a majority in Liquidation Amount of the Capital Securities will 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 Guarantee or to
direct the exercise of any trust or power conferred upon the Guarantee Trustee
under the Guarantee.
Any holder of the Capital Securities may institute a legal proceeding
directly against the Company 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.
The Company, as guarantor, will be required to file annually with the
Guarantee Trustee a certificate as to whether or not the Company is in
compliance with all the conditions and covenants applicable to it under the
Guarantee.
CERTAIN COVENANTS OF THE COMPANY
The Guarantee will provide that, so long as any Capital Securities remain
outstanding, if there shall have occurred any event that would constitute an
event of default under the Guarantee or the Declaration (other than solely a
default as described in paragraph (iii) under "Description of Junior Convertible
Subordinated Debentures -- Debenture Events of Default"), then 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, (ii) make any payment of principal, interest or premium, if any,
on or repay, repurchase or redeem any debt securities of the Company (including
any Other Debentures) that rank pari passu with or junior in right of payment to
the Junior Subordinated Debentures or (iii) make any guarantee payments with
respect to any guarantee by the Company of any securities of any subsidiary of
the Company (including Other Guarantees) if such guarantee ranks pari passu with
or junior in right of payment to the Junior Subordinated Debentures, other than
(a) dividends or distributions in shares of or options, warrants or rights to
subscribe for or purchase shares of, Common Stock or preferred 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 Guarantee, (d) as a direct result of, and only to the
extent required in order to avoid the issuance of fractional shares of capital
stock following 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, (e) 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, and (f) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Company's benefit plans for
its directors, officers or employees or any of the Company's dividend
reinvestment plans.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not materially adversely affect
the rights of holders of the Capital Securities (in which case no vote will be
required), the Guarantee may not be amended without the prior approval of the
holders of a majority of the Liquidation Amount of such outstanding Capital
Securities. The manner of obtaining any such approval will be as set forth under
"Description of Capital Securities -- Voting Rights; Amendment of the
Declaration." All guarantees and agreements contained in the Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Company and shall inure to the benefit of the holders of the Capital
Securities then outstanding.
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TERMINATION
The Guarantee will terminate and be of no further force and effect upon
full payment of the applicable Redemption Price of the Capital Securities, upon
full payment of the Liquidation Amount payable upon liquidation of the Trust or
upon distribution of the Junior Subordinated Debentures to the holders of the
Capital Securities. The Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of the Capital
Securities must restore payment of any sums paid under the Capital Securities or
the Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee is under no obligation to exercise any of the powers
vested in it by the Guarantee at the request of any holder of Capital
Securities, unless offered reasonable indemnity against the costs, expenses and
liabilities which might be incurred thereby. The Guarantee Trustee is not
required to expend or risk its own funds or otherwise incur personal financial
liability in the performance of its duties if it reasonably believes that
repayment or adequate indemnity is not reasonably assured to it.
GOVERNING LAW
The Guarantee will be governed by, and construed in accordance with, the
internal laws of the State of New York.
RELATIONSHIP AMONG THE CAPITAL SECURITIES, THE
JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Capital Securities
(to the extent the Trust has funds on hand legally available for the payment of
such Distributions) will be irrevocably guaranteed by the Company as and to the
extent set forth under "Description of the Guarantee." Taken together, the
Company's obligations under the Junior Subordinated Debentures, the Indenture,
the Declaration and the Guarantee will provide, in the aggregate, a full,
irrevocable and unconditional guarantee of payments of Distributions and other
amounts due on the 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 Capital Securities. If and to the extent that the
Company does not make the required payments on the Junior Subordinated
Debentures, the Trust will not have sufficient funds to make the related
payments, including Distributions, on the Capital Securities. The Guarantee will
not cover any such payment when the Trust does not have sufficient funds on hand
legally available therefor. In such event, the remedy of a holder of Capital
Securities is to institute a Direct Action. The obligations of the Company under
the Guarantee will be subordinate and junior in right of payment to all Senior
Indebtedness.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on
the Junior Subordinated Debentures, such payments will be sufficient to cover
Distributions and other payments due on the Capital Securities, primarily
because: (i) the aggregate principal amount or Prepayment Price of the Junior
Subordinated Debentures will be equal to the sum of the Liquidation Amount or
Redemption Price, as applicable, of the Capital Securities and Common
Securities; (ii) the interest rate and interest and other payment dates on the
Junior Subordinated Debentures will match the Distribution rate and Distribution
and other payment dates for the Trust Securities; (iii) the Company shall pay
for all and any costs, expenses and liabilities of the Trust except the
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Trust's obligations to holders of Trust Securities under such Trust Securities;
and (iv) the Declaration will provide that the Trust is not authorized to engage
in any activity that is not consistent with the limited purposes thereof.
ENFORCEMENT OF RIGHTS OF HOLDERS OF CAPITAL SECURITIES
A holder of any Capital Security may institute a legal proceeding directly
against the Company to enforce its rights under the 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 Indebtedness would not
constitute a default or Event of Default under the Declaration. However, in the
event of payment defaults under, or acceleration of, Senior Indebtedness, the
subordination provisions of the Indenture will provide that no payments may be
made in respect of the Junior Subordinated Debentures until such Senior
Indebtedness has been paid in full or any payment default thereunder has been
cured or waived. Failure to make required payments on Junior Subordinated
Debentures would constitute an Event of Default under the Declaration.
LIMITED PURPOSE OF THE TRUST
The Capital Securities will represent preferred beneficial interests in
the Trust, and the Trust exists for the sole purpose of issuing and selling the
Trust Securities, using the proceeds from the sale of the Trust Securities to
acquire the Junior Subordinated Debentures and engaging in only those other
activities necessary, advisable or incidental thereto.
RIGHTS UPON DISSOLUTION
Unless the Junior Subordinated Debentures are distributed to holders of
the Trust Securities, upon any voluntary or involuntary dissolution and
liquidation of the Trust, after satisfaction of liabilities to 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 Capital Securities -- Liquidation of
the Trust and Distribution of Junior Subordinated Debentures." Upon any
voluntary or involuntary liquidation or bankruptcy of the Company, the Property
Trustee, as holder of the Junior Subordinated Debentures, would be a
subordinated creditor of the Company, subordinated in right of payment to all
Senior Indebtedness as set forth in the Indenture, but entitled to receive
payment in full of principal (and premium, if any) and interest, before any
stockholders of the Company receive payments or distributions. Since the Company
will be the guarantor under the Guarantee and will agree 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 Capital
Securities and a holder of Junior Subordinated Debentures relative to other
creditors and to stockholders of the Company in the event of liquidation or
bankruptcy of the Company are expected to be substantially the same.
DESCRIPTION OF NEW YORK BANCORP INC. CAPITAL STOCK
GENERAL
The Company's authorized capital stock consists of 30,000,000 shares of
Common Stock and 2,000,000 shares of preferred stock, par value $.01 per share
(the "Preferred Stock").
COMMON STOCK
Subject to any prior rights of the Preferred Stock then outstanding,
holders of Common Stock are entitled to such dividends as may be declared from
time to time by the Company's Board of Directors (the "Company Board") out of
funds legally available therefor.
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Each holder of Common Stock is entitled to one vote for each share owned
by him or her on all matters submitted to a vote of the stockholders of the
Company. Such shares are not entitled to any cumulative voting rights. In the
event of any liquidation, dissolution or winding up of the Company, the holders
of Common Stock are entitled to share equally and ratably in any assets
remaining after the payment of all debts and liabilities, subject to the prior
rights, if any, of holders of Preferred Stock. Holders of Common Stock have no
preemptive or other subscription or conversion rights. The Common Stock is not
subject to redemption and the outstanding shares are fully paid and
nonassessable.
The Common Stock is listed on the NYSE under the symbol "NYB." On
September 16, 1997, the last reported sale price of the Common Stock on the NYSE
Composite Tape was $30.3125 per share.
PREFERRED STOCK
No shares of Preferred Stock are outstanding as of the date hereof. The
Company Board has the authority to issue shares of Preferred Stock in one or
more series and to fix the designation, powers, preferences and rights and
qualifications, limitations or restrictions thereon of any such series of
Preferred Stock.
CERTAIN ANTI-TAKEOVER PROVISIONS
This section sets forth a brief discussion of the reasons for, and the
operation and effects of, certain provisions of the Company's Certificate of
Incorporation (the "Company Certificate") and the Company's Bylaws (the "Company
Bylaws") which may have certain anti-takeover effects. This section also
summarizes certain provisions of federal law and Delaware law which may have
anti-takeover effects.
The Company Certificate and Bylaws
General. A number of provisions of the Company Certificate and Bylaws
pertain to matters of corporate governance and certain rights of stockholders.
Certain of those provisions may be deemed to have and may have the effect of
making more difficult, costly or time consuming, and thereby discouraging, a
merger, tender offer, proxy contest or other attempt to assume control of the
Company and/or change incumbent management and in certain circumstances may
prevent a change in control of the Company even if such a change in control is
desired by a majority of the Company's stockholders.
Authorized Shares of Capital Stock The Company Certificate permits the
Company Board to issue, without the approval of stockholders but subject to the
Company Board's fiduciary duties and the availability of authorized but unissued
shares, additional shares of Common Stock or shares of Preferred Stock. While
the availability of such shares provides the Company with flexibility in
structuring financings and acquisitions and meeting other corporate needs, it
may also, as more fully described below, impede the completion of a transaction
to which the Company Board or management is opposed.
Uncommitted authorized but unissued shares of Common Stock and Preferred
Stock may be issued from time to time to such persons and for such consideration
as the Company Board may determine and holders of the then-outstanding shares of
Common Stock or Preferred Stock may or may not be given the opportunity to vote
thereon, depending upon the nature of any such transactions, applicable law, the
rules and policies of the NYSE and the judgment of the Company Board regarding
the submission of such issuance to the Company's stockholders. The Company's
stockholders have no preemptive rights to subscribe to newly issued shares by
the Company.
Moreover, it is possible that additional shares of Common Stock or shares
of Preferred Stock may be issued for the purpose of making an acquisition by an
unwanted suitor of a controlling interest in the Company more difficult,
time-consuming or costly or to otherwise discourage an attempt to acquire
control of the Company. Under such circumstances, the availability of authorized
and unissued shares of Common Stock and Preferred
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Stock may make it more difficult for the Company's stockholders to obtain a
premium for their shares. Such authorized and unissued shares could be used to
create voting or other impediments or to frustrate a person seeking to obtain
control of the Company through a merger, tender offer, proxy contest or other
means. Such shares could be privately placed with purchasers who might cooperate
with the Company in opposing such an attempt by a third party to gain control of
the Company. The issuance of shares of Common Stock or Preferred Stock could
also be used to dilute ownership of a person or entity seeking to obtain control
of the Company. Although the Company does not currently contemplate taking such
action, shares of Common Stock or one or more series of Preferred Stock could be
issued for the purposes and effects described above and the Company Board
reserves its rights to issue such stock for such purposes.
Classified Board of Directors and Removal of Directors. The Company
Certificate states that the Company Board is to be divided into three classes,
which shall be as nearly equal in number as possible. The directors of the
Company in each class hold office for a term of three years. The Company
Certificate provides that a director may be removed only for cause and then only
by the affirmative vote of the holders of at least 80% of the voting power of
the then outstanding shares of capital stock of the Company entitled to vote
generally in the election of directors, voting together as a single class.
A classified board of directors could make it more difficult for
stockholders to force an immediate change in the composition of a majority of
the Company Board. Since the terms of approximately one-third of the incumbent
directors expire each year, at least two annual elections are necessary for the
stockholders to replace a majority of the board, whereas a majority of a
non-classified board may be replaced in one year.
Management of the Company believes that the staggered election of
directors helps to promote the continuity of management because approximately
one-third of the Company Board is subject to election each year. Staggered terms
help to assure that in the ordinary course of business approximately two-thirds
of the directors, or more, at any one time have had at least one year's
experience as directors, and moderate the pace of changes in the Company Board
by extending the minimum time required to elect a majority of directors from one
to two years.
Stockholder Vote Required to Approve Business Combinations with Principal
Stockholders. In connection with certain "Business Combinations" (as defined
below) and related transactions between the Company and an "Interested
Stockholder" (as defined below), the Company Certificate requires the approval
of the holders of at least 80% of the voting power of the then outstanding
shares of capital stock of the Company entitled to vote generally in the
election of directors, voting together as a single class, unless the transaction
is approved by the affirmative vote of at least a majority of the directors who
are not affiliated with the Interested Stockholder and who were directors at the
time the Interested Stockholder became such or unless certain fair price
criteria are met. The Company Certificate defines the term "Interested
Stockholder" generally to include any individual or entity which, together with
its affiliates, owns beneficially or controls, directly or indirectly, 10% or
more of the outstanding shares of voting stock of the Company.
The Company Certificate defines "Business Combination" as: (a) any merger
or consolidation of the Company or any of its subsidiaries with (i) any
Interested Stockholder or (ii) any other corporation (whether or not itself an
Interested Stockholder) which is, or after such merger or consolidation would
be, an affiliate of an Interested Stockholder; (b) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition (in one transaction or a series
of transactions) to or with any Interested Stockholder, or any affiliate of any
Interested Stockholder, of 25% or more of the combined assets of the Company and
its subsidiaries; (c) the issuance or transfer by the Company or any of its
subsidiaries (in one transaction or a series of transactions) of any securities
of the Company or any of its subsidiaries to any Interested Stockholder or any
affiliate of any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate fair market value
equalling or exceeding 25% of the combined assets of the Company and its
subsidiaries except pursuant to an employee benefit plan of the Company or any
of its subsidiaries; (d) the adoption of any plan or proposal for the
liquidation or dissolution of the Company proposed by or on behalf of any
Interested Stockholder;
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or (e) any reclassification of securities (including any reverse stock split),
or recapitalization of the Company, or any merger or consolidation of the
Company with any of its subsidiaries or any other transaction (whether or not
with or into or otherwise involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the proportionate shares of the
outstanding shares of any class of equity or convertible securities of the
Company or any of its subsidiaries which is directly or indirectly owned by any
Interested Stockholder or any affiliate of any Interested Stockholder.
Under Delaware law, absent such a supermajority voting provision, business
combinations, including mergers, consolidations and sales of substantially all
of the assets of the Company must be approved by the vote of the holders of a
majority of the outstanding shares of Common Stock, subject to certain
exceptions. See "- Delaware Law" below. The increased stockholder vote required
to approve a Business Combination may have the effect of foreclosing mergers and
other business combinations which a majority of stockholders deem desirable and
may place the power to prevent such a merger or combination in the hands of a
minority of stockholders.
Provisions Relating to Meetings of Stockholders. The Company Certificate
and Bylaws provide that special meetings of stockholders may only be called by a
resolution of the Company Board adopted by a majority of the total number of
directors which the Company would have if there were no vacancies on the Company
Board (the "Whole Board"). The Company Certificate also provides that
stockholder action may be taken only at a special or an annual meeting of
stockholders and not by written consent. Although management of the Company
believes that these provisions will discourage stockholder attempts to disrupt
the business of the Company between annual meetings of stockholders, an
additional effect may be to deter hostile takeovers by making it more difficult
for a person or entity to obtain immediate control of the Company between annual
meetings. These provisions may also prevent stockholders from using a special
meeting as a forum to address certain other matters and may discourage takeovers
which are desired by stockholders.
Restriction of Maximum Number of Directors and Filling Vacancies on the
Company's Board of Directors. The Company Certificate provides that the number
of directors of the Company shall be fixed from time to time exclusively by the
Company Board pursuant to a resolution adopted by a majority of the Whole Board.
The power to fill vacancies, whether occurring by reason of an increase in the
number of directors or by resignation, is vested in the Company Board acting by
a vote of a majority of directors then in office, even if less than a quorum.
The ability of the Company Board to increase the size of the Company Board and
to fill vacancies resulting from newly created directorships could allow the
Company Board to retain control of the Company and to prevent a person or entity
from immediately acquiring control of the Company by creating new directorships
and filling the vacancies created thereby.
Advance Notice Requirements for Presentation of New Business and
Nominations of Directors at Meetings of Stockholders. The Company Bylaws
generally provide that any stockholder desiring to make a proposal for new
business at an annual meeting of stockholders must submit written notice which
must be received at the principal executive offices of the Company at least 30
days in advance of the meeting. In addition, the Company Bylaws do not permit
stockholders to make a proposal for new business at special meetings of
stockholders. The Company Bylaws also provide that stockholders wishing to
nominate candidates for election as directors must deliver written notice to the
secretary of the Company at least 30 days prior to the date of the annual
meeting of stockholders. Adequate advance notice of stockholder proposals and
nominations gives management time to evaluate such proposals and nominations and
to determine whether to recommend to the stockholders that such proposals be
adopted. In certain instances such provisions could make it more difficult to
oppose management's proposals or nominations if stockholders believe such
proposals or nominations are not in their best interests.
Supermajority Voting Requirement for Amendment of Certain Provisions of
the Company Certificate. The Company Certificate may be amended only if first
approved by at least a majority of the Whole Board at a duly constituted meeting
called expressly for that purpose and thereafter approved by the vote of the
holders of a majority of the outstanding shares of Common Stock, except that the
provisions of the Company Certificate governing (i) the Company's internal
affairs, (ii) calling special meetings, (iii) indemnification and (iv) approval
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of Business Combinations must be approved by the affirmative vote of the holders
of at least 80% of the total votes eligible to be cast on such matters. This
provision is intended to prevent the holders of less than 80% of the outstanding
shares of the Company from circumventing any of the foregoing provisions by
amending the Company Certificate to delete or modify any one of such provisions.
This provision would enable the holders of more than 20% of the Company's voting
stock to prevent amendments to the Company Certificate even if they were favored
by the holders of a majority of the voting stock.
Federal Law
Federal law provides that no person or company, directly or indirectly or
acting in concert with one or more persons or companies, or through one or more
subsidiaries, or through one or more transactions, may acquire "control" of a
savings association (which for these purposes includes a holding company
thereof) at any time without the prior approval of, or, in the case of
individuals, written notice to (and no objection by), the OTS. Any company that
acquires such control becomes a "savings and loan holding company" subject to
registration, examination and regulation as a savings and loan holding company.
Control of a savings association or any other company under federal statute
includes, generally, ownership of, control of or holding irrevocable proxies (or
any combination of irrevocable proxies and voting stock) representing more than
25% of any class of voting stock, control in any manner of the election of a
majority of the savings association's directors, or a determination by the OTS
(after notice and opportunity for a hearing) that the acquiror has the power to
direct, or directly or indirectly to exercise a controlling influence over, the
management or policies of the institution. Among other things, direct or
indirect acquisition of more than 10% of any class of a savings association's
voting stock, if the acquiror also is subject to any one of eight "control
factors," constitutes a rebuttable determination of control under the OTS
regulations. Such control factors include, among other things, the acquiror
being one of the two largest stockholders of any class of voting stock, holding
more than 25% of the total stockholders' equity and 35% of the combined debt
securities and stockholders' equity. The determination of control may be
rebutted by submission to the OTS, prior to the acquisition of stock or the
occurrence of any other circumstances giving rise to such determination, of a
statement setting forth facts and circumstances which would support a finding
that no control relationship will exist and containing certain undertakings.
Thus, any person or company that intends to acquire more than 25% of the Common
Stock, or that is subject to a "control factor" as described in the federal
regulations and intends to acquire more than 10% of the Common Stock, may need
to notify the OTS and seek prior approval, non-objection or acceptance of a
rebuttal statement.
Delaware Law
Section 203 of the Delaware General Corporation Law (the "DGCL") may have
the effect of significantly delaying a purchaser's acquisition of the entire
equity interest in the Company and, accordingly, could delay or discourage
certain takeover attempts. In general, Section 203 of the DGCL prevents an
"Interested Stockholder" (defined generally as a person holding 15% or more of a
corporation's outstanding voting stock) from engaging in a "Business
Combination" (defined to include a variety of transactions, including mergers,
as set forth below) with a Delaware corporation such as the Company for three
years following the date such person became an Interested Stockholder unless:
(i) before such person became an Interested Stockholder, the board of directors
of the corporation approved either the Business Combination or the transaction
in which the Interested Stockholder became an Interested Stockholder; (ii) upon
consummation of the transaction which resulted in the Interested Stockholder
becoming an Interested Stockholder, the Interested Stockholder owned at least
85% of the voting stock of the corporation outstanding at the time the
transaction commenced (excluding stock owned by directors who are also officers
and employee stock plans in which employee participants do not have the right to
determine confidentially whether shares held subject to the plan will be
tendered); or (iii) following the transaction in which such person became an
Interested Stockholder, the Business Combination is (A) approved by the board of
directors of the corporation and (B) authorized at a meeting of stockholders by
the affirmative vote of the holders of 66 2/3% of the outstanding voting stock
of the corporation not owned by the Interested Stockholder. The restrictions
imposed on Interested Stockholders under DGCL Section 203 do not apply under
certain limited
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circumstances set forth therein, including certain Business Combination proposed
by an Interested Stockholder following the announcement or notification of
certain extraordinary transactions involving the corporation and a person who
had not been an Interested Stockholder during the previous three years or who
became an Interested Stockholder with the approval of a majority of the
corporation's directors.
Section 203 of the DGCL provides that during such three-year period, the
corporation may not merge or consolidate with an Interested Stockholder or any
affiliate or associate thereof, and also may not engage in certain other
transactions with an Interested Stockholder or any affiliate or associate
thereof, including, without limitation, (i) any merger or consolidation of the
corporation or a direct or indirect majority-owned subsidiary of the corporation
with (A) the Interested Stockholder, or (B) with any other corporation if the
merger or consolidation is caused by the Interested Stockholder and as a result
of such merger or consolidation the above limitations of Section 203 are not
applicable to the surviving corporation; (ii) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition (except proportionately as a
stockholder of the corporation) to or with the Interested Stockholder of assets
having an aggregate market value equal to 10% or more of the aggregate market
value of all assets of the corporation determined on a consolidated basis or the
aggregate market value of all the outstanding stock of a corporation; (iii) any
transaction which results in the issuance or transfer by the corporation or by
any majority owned subsidiary thereof of any stock of the corporation or such
subsidiary to the Interested Stockholder, except, among other things, pursuant
to a transaction which effects a pro rata distribution to all stockholders of
the corporation; (iv) any transaction involving the corporation or any majority
owned subsidiary thereof which has the effect of increasing the proportionate
share of the stock of any class or series, or securities convertible into the
stock of any class or series, of the corporation or any such subsidiary which is
owned by the Interest Stockholder (except, among other things, as a result of
immaterial changes due to fractional share adjustments); or (v) any receipt by
the Interested Stockholder of the benefit (except proportionately as a
stockholder of such corporation) of any loans, advances, guarantees, pledges or
other financial benefits provided by or through the corporation.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of certain of the principal United States
federal income tax consequences of the purchase, ownership and disposition of
the Capital Securities to a holder that is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized under
the laws of the United States or any state thereof or the District of Columbia
or an estate or trust the income of which is subject to United States federal
income taxation regardless of source or a trust with respect to which a court
within the United States is able to exercise primary supervision over its
administration and one or more United States fiduciaries have the authority to
control all of its substantial decisions (a "U.S. Holder"). This summary does
not address the United States federal income tax consequences to persons other
than U.S. Holders who purchase Capital Securities upon their initial issuance.
This summary is based on the United States federal income tax laws,
regulations and rulings and decisions now in effect, all of which are subject to
change, possibly on a retroactive basis. This summary does not address the tax
consequences applicable to investors that may be subject to special tax rules
such as banks, thrifts, 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," "conversion
transaction" or other integrated investment or as other than a capital asset.
This summary also does not address the tax consequences to persons that have a
functional currency other than the U.S. dollar or the tax consequences to
shareholders, partners or beneficiaries of a holder of Capital Securities.
Further, it does not include any description of any alternative minimum tax
consequences or the tax laws of any state or local government or of any foreign
government that may be applicable to the Capital Securities.
PROSPECTIVE INVESTORS ARE ADVISED TO CONSULT WITH THEIR OWN TAX ADVISORS
IN LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES AS TO THE FEDERAL TAX
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CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF CAPITAL SECURITIES,
AS WELL AS THE EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
The Company intends to take the position that, under current law, the
Junior Subordinated Debentures constitute indebtedness for federal income tax
purposes and, by acceptance of a Capital Security, each holder covenants to
treat the Junior Subordinated Debentures as indebtedness and the Capital
Securities as evidence of an indirect beneficial interest in the Junior
Subordinated Debentures. No assurances can be given, however, that such position
of the Company will not be challenged by the Internal Revenue Service (the
"Service") or, if challenged, that such challenge will not be successful. The
remainder of this discussion assumes that the Junior Subordinated Debentures are
classified as indebtedness for federal income tax purposes.
CLASSIFICATION OF THE TRUST
Upon the issuance of the Capital Securities, Weil, Gotshal & Manges LLP
will issue its opinion (the "Tax Opinion") to the effect that, under then
current law and assuming full compliance with the terms of the Declaration (and
certain other documents), and based on certain facts and assumptions contained
in such opinion, the Trust will be classified, for United States federal income
tax purposes, as a grantor trust and not as an association taxable as a
corporation. As a result, each holder of Capital Securities will be treated as
owning an undivided beneficial interest in the Junior Subordinated Debentures
and each holder will be required to include in its gross income the items of
income realized with respect to its allocable share of those Junior Subordinated
Debentures. Investors should be aware that the Tax Opinion does not address any
other issue and is not binding on the Service or the courts.
INTEREST, ORIGINAL ISSUE DISCOUNT, PREMIUM AND MARKET DISCOUNT
Final Treasury Regulations issued on June 16, 1996 generally provide that
stated interest on a debt instrument is not "qualified stated interest" and,
therefore, will give rise to OID unless such interest is unconditionally payable
in cash or in property (other than debt instruments of the issuer) at least
annually at a single fixed rate. Interest is considered to be unconditionally
payable only if reasonable legal remedies exist to compel timely payment or the
debt instrument otherwise provides terms and conditions that make the likelihood
of late payment (other than late payment that occurs within a reasonable grace
period) or non-payment a "remote contingency."
The Company has the right, at any time and from time to time during the
term of the Junior Subordinated Debentures, to defer payments of interest by
extending the interest payment period for a period not exceeding 20 consecutive
quarters, provided that no Extension Period may extend beyond the Stated
Maturity of the Junior Subordinated Debentures. During any Extension Period, the
Company may not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the
Company's capital stock, (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company (including any Other Debentures) that rank pari passu with or junior in
right of payment to the Junior Subordinated Debentures or (iii) make any
guarantee payments with respect to any guarantee by the Company of any
securities of any subsidiary of the Company (including Other Guarantees) if such
guarantee ranks pari passu with or junior in right of payment to the Junior
Subordinated Debentures, other than (a) dividends or distributions in shares of
or options, warrants or rights to subscribe for or purchase shares of, Common
Stock or preferred 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
Guarantee, (d) as a direct result of, and only to the extent required in order
to avoid the issuance of fractional shares of capital stock following, 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, (e) 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,
and (f) purchases of Common Stock
53
<PAGE>
related to the issuance of Common Stock or rights under any of the Company's
benefit plans for its directors, officers or employees or any of the Company's
dividend reinvestment plans. See "Description of Junior Convertible Subordinated
Debentures -- Option to Extend Interest Payment Date." The Company believes that
the adverse impact that the imposition of such restrictions would have on the
Company and the value of its equity securities makes the likelihood of its
exercising its right to defer payments of interest on the Junior Subordinated
Debentures remote. Accordingly, the Company believes, and this discussion
assumes, that the stated interest on the Subordinated Debentures should be
considered unconditionally payable and that the Junior Subordinated Debentures
should not be considered to have been issued with OID. If so, stated interest
paid or payable prior to the exercise, if any, by the Company, of its right to
defer interest payments, will be taxable to a holder as ordinary interest
income, generally at the time it is received or accrued, in accordance with such
holder's regular method of accounting for federal income tax purposes. There can
be no assurance that the Service will agree with the Company's position.
Moreover, if, notwithstanding the foregoing, the Company does exercise its
right to defer payments of interest thereon, the Junior Subordinated Debentures
will be considered to be retired and reissued for their adjusted issue price at
such time, and the Junior Subordinated Debentures thereafter will be considered
to have been issued with OID. In such case, all the interest payments thereafter
payable will be treated as OID. If the payments were treated as OID (either
because the Company exercises the right to defer interest payments or because
the likelihood of exercise of such right was not remote at the time of
issuance), holders must include that discount in income on an economic accrual
basis before the receipt of cash attributable to the interest, regardless of
their method of tax accounting, and any holders who dispose of Capital
Securities prior to the Distribution Record Date for payment of Distributions
thereon following such Extension Period will include OID in gross income but
will not receive any cash related thereto from the Trust. The amount of OID that
accrues in any quarterly period will approximately equal the amount of the
interest that accrues in that period at the stated interest rate. In the event
that the interest payment period is extended, holders will accrue OID
approximately equal to the amount of the interest payment due at the end of the
extended interest payment period on an economic accrual basis over the length of
the extended interest period.
Holders of Capital Securities will not be entitled to a dividends-received
deduction with respect to any income earned on the Capital Securities.
Holders of Capital Securities other than a holder who purchased the
Capital Securities upon original issuance may be considered to have acquired
their undivided interests in the Junior Subordinated Debentures with market
discount or acquisition premium, as such phrases are defined for United States
federal income tax purposes. Such holders are advised to consult their tax
advisors as to the income tax consequences of the acquisition, ownership and
disposition of Capital Securities.
RECEIPT OF JUNIOR SUBORDINATED DEBENTURES UPON LIQUIDATION OF THE TRUST
As described under "Description of Capital Securities -- Liquidation of
the Trust and Distribution of Junior Subordinated Debentures," Junior
Subordinated Debentures 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 treated as a non-taxable event to each holder and each
holder's aggregate tax basis in the Junior Subordinated Debentures would be
equal to such holder's aggregate tax basis in its Capital Securities. A holder's
holding period in the Junior Subordinated Debentures so received in liquidation
of the Trust would include the period for which the Capital Securities were held
by such holder. 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 Debentures, the distribution of
Junior Subordinated Debentures to the holders of Capital Securities by the Trust
would be a taxable event to the Trust and a holder of Capital Securities would
recognize gain or loss as if such holder had exchanged its Capital Securities
for the Junior Subordinated Debentures it received upon the liquidation of the
Trust. A holder will be taxable on OID (if any) in respect of Junior
Subordinated Debentures
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<PAGE>
received from the Trust in the manner described above under " -- Interest,
Original Issue Discount, Premium and Market Discount."
SALE OR REDEMPTION OF CAPITAL SECURITIES
A holder that sells Capital Securities (including a redemption for cash)
will recognize gain or loss equal to the difference between the amount realized
on the sale (other than amounts attributable to accrued but unpaid interest
which has not yet been included in income, which will be treated as ordinary
income) and its adjusted tax basis in the securities sold or redeemed. A
holder's adjusted tax basis in the Capital Securities generally will be its
initial purchase price increased by OID (if any) previously includible in such
holder's gross income to the date of disposition (and the accrual of market
discount, if any, if an election to accrue market discount in income currently
is made) and decreased by payments received on the Capital Securities (other
than payments of qualified stated interest). Except to the extent noted above
and subject to the market discount rules of the Internal Revenue Code of 1986,
as amended (the "Code"), any such gain or loss generally will be short-term,
mid-term or long-term capital gain or loss depending on the length of time the
Capital Securities were held.
The Capital Securities may trade at a price that does not fully reflect
the value of accrued but unpaid interest with respect to the underlying Junior
Subordinated Debentures. A holder who uses the accrual method of accounting (and
a cash method holder, during and after an Extension Period or if the Junior
Subordinated Debentures are deemed to have been issued with OID) and who
disposes of its Capital Securities between Distribution Record Dates will be
required to include accrued but unpaid interest (or OID) on the Junior
Subordinated Debentures through the date of disposition in income as ordinary
income, and to add such amount to its adjusted tax basis in its Capital
Securities disposed of. To the extent the selling price (which may not fully
reflect the value of accrued but unpaid interest or OID) is less than such
holder's adjusted tax basis, a holder will recognize a capital loss. Subject to
certain limited exceptions, capital losses cannot be applied to offset ordinary
income for United States federal income tax purposes.
CONVERSION OF CAPITAL SECURITIES
A holder of Capital Securities generally will not recognize income, gain
or loss upon the conversion, through the Conversion Agent, of its Capital
Securities into Common Stock. A holder will, however, recognize gain upon the
receipt of cash in lieu of a fractional share of Common Stock equal to the
amount of cash received less the holder's tax basis in such fractional share. A
holder's tax basis in the Common Stock received upon exchange and conversion
will generally be equal to the holder's tax basis in the Capital Securities
delivered to the Conversion Agent for exchange less that basis allocated to any
fractional share for which cash is received, and a holder's holding period in
the Common Stock received upon exchange and conversion will generally begin on
the date the holder acquired the Capital Securities delivered to the Conversion
Agent for exchange.
ADJUSTMENT OF CONVERSION PRICE
Treasury Regulations promulgated under Section 305 of the Code would treat
holders of Capital Securities as having received a constructive distribution
from the Company in the event the Conversion Price of the Junior Subordinated
Debentures were adjusted if (i) as a result of such adjustment, the
proportionate interest (measured by the quantum of Common Stock into or for
which the Junior Subordinated Debentures are convertible or exchangeable) of the
holders of the Capital Securities in the assets or earnings and profits of the
Company were increased, and (ii) the adjustment was not made pursuant to a bona
fide, reasonable antidilution formula. An adjustment in the Conversion Price
would not be considered made pursuant to such a formula if the adjustment was
made to compensate for certain taxable distributions with respect to the Common
Stock. Thus, under certain circumstances, a reduction in the Conversion Price
for the holders may result in deemed dividend income to holders to the extent of
the current or accumulated earnings and profits of the Company. Holders of the
Capital Securities would be required to include their allocable share of such
deemed dividend income in gross income but would not receive any cash related
thereto.
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BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
Subject to the qualifications discussed below, income on the Capital
Securities will be reported to holders on Forms 1099, which forms are expected
to be mailed to holders of Capital Securities by January 31 following each
calendar year.
The Trust will be obligated to report annually to the holders of record of
the Capital Securities, the interest (or OID) related to the Junior Subordinated
Debentures for that year. The Trust currently intends to report such information
on Form 1099 prior to January 31 following each calendar year even though the
Trust is not legally required to report to record holders until April 15
following each calendar year. Under current law, holders of Capital Securities
who hold as nominees for beneficial holders will not have any obligation to
report information regarding the beneficial holders to the Trust. The Trust,
moreover, will not have any obligation to report to beneficial holders who are
not also record holders.
Payments made on, and proceeds from the sale of, the Capital Securities
may be subject to a "backup" withholding tax of 31% unless the holder complies
with certain identification requirements. Any withheld amounts will be allowed
as a credit against the holder's federal income tax liability, provided the
required information is provided to the Service.
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS
INCLUDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A
HOLDER'S PARTICULAR SITUATION. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH
RESPECT TO THE TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND
DISPOSITION OF THE CAPITAL SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER THE
ALTERNATIVE MINIMUM TAX AND THE STATE, LOCAL, FOREIGN AND OTHER TAX LAWS AND THE
POSSIBLE EFFECTS OF CHANGES IN UNITED STATES FEDERAL OR OTHER TAX LAWS.
ERISA CONSIDERATIONS
The Company, the obligor with respect to the Junior Subordinated
Debentures held by the Trust and the Guarantee, the Issuer Trustees and the
Guarantee Trustee may from time to time provide services directly or through
subsidiaries to many employee benefit plans within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
individual retirement accounts or other plans within the meaning of Section 4975
of the Code, or persons which are treated as using assets of such employee
benefit plans, accounts or plans (collectively, "Plans"). As a result, the
Company, the Issuer Trustees and the Guarantee Trustee may each be considered a
"party in interest" or a "disqualified person" (as defined in ERISA or Section
4975 of the Code, respectively) to which the prohibited transaction provisions
of ERISA or Section 4975 of the Code apply. Any direct or indirect loan or other
extension of credit between the Company and any Plan with respect to which the
Company is a party in interest or disqualified person may constitute a
prohibited transaction unless a statutory or administrative exemption applies.
The Company expects that, subject to the approval for listing of the Capital
Securities on the NYSE, the Capital Securities will qualify as "publicly offered
securities" within the meaning of the Department of Labor "plan assets"
regulations, 29 F.R. ss. 2510.3-101, such that the Junior Subordinated
Debentures held by the Trust would not be treated as plan assets of Plans that
acquire Capital Securities. Notwithstanding that the Capital Securities are
expected to be publicly offered securities, the Junior Subordinated Debentures
might be treated as an indirect extension of credit to the Company by any Plan
acquiring Capital Securities because of the specific purpose of the Trust and
thereby might constitute a prohibited transaction unless an exemption applies.
Accordingly, any purchaser proposing to acquire Capital Securities with assets
of any Plan should consult with its counsel, particularly with respect to the
applicability of such prohibited transaction provisions, and no Plan should
acquire or hold any Capital Securities unless one of the following exemptions
from such provisions applies: Prohibited Transaction Class Exemption ("PTCE")
84-14 (an exemption for certain transactions determined by an independent
qualified professional asset manager), PTCE 90-1
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(an exemption for certain transactions involving insurance company pooled
separate accounts), PTCE 91-38 (an exemption for certain transactions involving
bank collective investment funds), PTCE 95-60 (an exemption for transactions
involving certain insurance company general accounts) or PTCE 96-23 (an
exception for certain transactions determined by an in-house asset manager). In
particular, to avoid the occurrence of a non-exempt prohibited transaction, no
individual retirement account as to which the beneficiary directs the investment
thereof and the Company serves as custodian should acquire or hold any Capital
Securities pursuant to the investment direction of the beneficiary.
In addition, a Plan fiduciary considering the purchase of Capital
Securities should be aware that the assets of the Trust may be considered "plan
assets" of Plans holding Capital Securities for purposes of ERISA and Section
4975 of the Code. In such event, service providers with respect to the assets of
the Trust may become parties in interest or disqualified persons with respect to
investing Plans, and any discretionary authority exercised with respect to the
Junior Subordinated Debentures by such persons could be deemed to constitute or
give rise to a prohibited transaction under ERISA or the Code. In order to avoid
such prohibited transactions, each investing Plan, by purchasing the Capital
Securities, will be deemed to have directed the Trust to invest in the Junior
Subordinated Debentures, to enter into the Guarantee and to have appointed the
Issuer Trustees.
A fiduciary with respect to a Plan subject to ERISA (excludes individual
retirement accounts) should consider whether the purchase of Capital Securities
could result in a delegation of fiduciary authority to the Property Trustee,
and, if so, whether such a delegation of authority is permissible under the
Plan's governing instrument or any investment management agreement with the
Plan. In making such determination, a Plan fiduciary should note that the
Property Trustee is a U.S. bank qualified to be an investment manager (within
the meaning of section 3(38) of ERISA) to which such delegation of authority
generally would be permissible under ERISA. Further, prior to an Event of
Default with respect to the Junior Subordinated Debentures, the Property Trustee
will have only limited custodial and ministerial authority with respect to Trust
assets.
Each fiduciary with respect to a Plan who is responsible for the
acquisition of Capital Securities by such Plan shall be deemed to have
represented and warranted for the benefit of the Company, the Issuer Trustees
and the Guarantee Trustee that the acquisition and holding of Capital Securities
by such Plan does not result in or give rise to a non-exempt prohibited
transaction by reason of the application of one or more of PTCE 84-14, 90-1, 91-
38, 95-60 or 96-23.
THE OFFERINGS
Up to 2,000,000 Capital Securities are being offered for sale in the
Subscription Offering, as described below, to Eligible Subscribers, who are the
holders of record of the Common Stock of the Company as of the close of business
on September 18, 1997, the date chosen by the Company's Board of Directors as
the record date for purposes of determining stockholders eligible to receive
notice of and participate in the Subscription Offering (the "Subscription
Offering Record Date"). All Capital Securities offered in the Subscription
Offering and not sold to Eligible Subscribers in accordance with the procedures
described below will be offered in the Public Offering by the Underwriter. See "
- -- The Public Offering" below.
THE SUBSCRIPTION OFFERING
Nontransferable Subscription Rights to purchase up to 2,000,000 Capital
Securities are being issued pursuant to this Prospectus at no cost to all
Eligible Subscribers. The Subscription Rights are nontransferable. No person is
required to subscribe for any Capital Securities in the Subscription Offering.
The Company reserves the right to modify or terminate the Subscription Offering
at any time and for any reason in the sole discetion of the Company, on or prior
to the Subscription Offering Expiration Date, by notice to that effect delivered
to the Sales Agent, followed by public notice.
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SUBSCRIPTIONS FOR CAPITAL SECURITIES
Holders of Subscription Rights may subscribe for Capital Securities by
properly completing and signing the Subscription Form mailed to the
Eligible Subscribers together with this Prospectus and by delivering it to the
Sales Agent, or by mailing it in the postage-paid return envelope accompanying
this Prospectus, accompanied by full payment for the subscribed Capital
Securities (including with respect to Capital Securities sought to be purchased
pursuant to the exercise of Excess Subscription Rights).
Fully completed and executed Subscription Forms, together with full
payment for the subscribed-for Capital Securities, must be received by 5:00 p.m.
(New York City time) on the Subscription Offering Expiration Date. Payment for
the subscribed Capital Securities (including those relating to a subscriber's
Pro Rata Subscription Right and Excess Subscription Rights) must be made by
certified, cashier's or personal check or by money order. The failure of the
Sales Agent to receive from any Eligible Subscriber for any reason a properly
completed and executed Subscription Form, accompanied by full payment, by the
Subscription Offering Expiration Date, will be deemed a waiver and release by
such person of all Subscription Rights held. A Subscription Form, once received
by the Sales Agent, is irrevocable and cannot be amended, modified or rescinded
by the Eligible Subscriber without the consent of the Company and the Trust,
which consent may be withheld for any or no reason in the sole discretion of the
Company and the Trust. The Company and the Trust may, but are not required to,
waive any irregularities in any Subscription Form or require the submission of a
corrected Subscription Form or the remittance of full payment for subscribed
Capital Securities by such date as the Company and the Trust may specify.
In order for the Subscription Rights to be eligible for exercise, funds
must be available to the Trust on or prior to the Subscription Offering
Expiration Date. Funds paid by uncertified personal check may take at least five
business days to clear, in the case of checks drawn on domestic banks, and seven
business days in the case of checks drawn on foreign banks. Accordingly,
Eligible Subscribers who wish to pay for the subscribed Capital Securities by
means of uncertified personal check are urged to make payment sufficiently in
advance of the Subscription Offering Expiration Date to ensure that the payment
is received and clears by that time, and are urged to consider in the
alternative payment by means of certified or cashier's check or money order.
The Subscription Rights will entitle each Eligible Subscriber to purchase
up to the same percentage of the Capital Securities offered in the Subscription
Offering (rounded down to the nearest whole Capital Security) as the percentage
of the outstanding shares of Common Stock owned of record by the Eligible
Subscriber as of the Subscription Offering Record Date (such entitlement being
referred to as an Eligible Subscriber's "Pro Rata Subscription Right"). Based on
the number of shares of Common Stock outstanding on the Subscription Offering
Record Date, an Eligible Subscriber would be entitled to purchase pursuant to
his Pro Rata Subscription Right .0938 of a Capital Security for each share of
Common Stock held as of such date. Each Eligible Subscriber also is being given
the opportunity to indicate on the Subscription Form whether such Eligible
Subscriber wishes to purchase, in the event the Subscription Offering is not
fully subscribed pursuant to the Pro Rata Subscription Rights, Capital
Securities in excess of those allotted to him pursuant to his Pro Rata
Subscription Rights and the maximum amount of such excess Capital Securities
such Eligible Subscriber seeks to purchase (the "Excess Subscription Rights").
In the event the exercise of the Excess Subscription Rights results in the
Subscription Offering being oversubscribed, then the number of Capital
Securities sought to be purchased by each Eligible Subscriber exercising Excess
Subscription Rights will be reduced and will equal the product of (i) such
number of excess Capital Securities sought to be purchased by such Eligible
Subscriber and (ii) a fraction, the numerator of which is the number of
outstanding shares of Common Stock owned of record by such Eligible Subscriber
as of the Subscription Offering Record Date and the denominator of which is the
aggregate number of outstanding shares of Common Stock owned of record by all
Eligible Subscribers who elect to exercise Excess Subscription Rights as of the
Subscription Offering Record Date. The Sales Agent will have the authority to
determine the amount of Capital Securities each Eligible Subscriber is entitled
to purchase pursuant to the foregoing procedures using such methods (such as
rounding) as it determines to be appropriate.
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Certain directors and executive officers of the Company owning in the
aggregate approximately 24% of the Common Stock have informed the Company that
they presently intend to exercise their Pro Rata Subscription Rights and also
may exercise Excess Subscription Rights.
Refunds to Eligible Subscribers in the Subscription Offering will be
remitted (a) in the event of an oversubscription in the Subscription Offering
and (b) in the event the Subscription Offering is terminated. Under no
circumstances will interest be paid on funds delivered as payment for the
Capital Securities. Any refunds due to Eligible Subscribers on funds remitted
will be mailed to each Eligible Subscriber at the address designated on the
Subscription Form promptly after the expiration or termination of the
Subscription Offering.
The Subscription Offering is not conditioned upon the sale of a minimum
Liquidation Amount of the Capital Securities and, further, is not conditioned
upon the completion of the Public Offering. The Subscription Offering may be
modified or terminated at any time and for any reason in the sole discretion of
the Company, on or prior to the Subscription Offering Expiration Date. In the
event the Subscription Offering is terminated, refunds of the payments made for
subscribed-for Capital Securities will be remitted and mailed to each Eligible
Subscriber at the address designated on the Subscription Form promptly after the
termination of the Subscription Offering.
The Company has retained the services of the Sales Agent in connection
with the Subscription Offering. The Sales Agent, among other things, will assist
in responding to inquiries from Eligible Subscribers concerning the procedures
of the Subscription Offering and will maintain records regarding subscriptions
for the Capital Securities.
For its services, the Company has agreed to pay the Sales Agent a fee in
the amount of $5,000. The Company also has agreed to indemnify the Sales Agent
under certain circumstances against certain liabilities and expenses, including
liabilities under the Securities Act. The Company also has agreed to pay the
Underwriter a financial advisory fee in an amount equal to 1.2% of the aggregate
Liquidation Amount of Capital Securities offered in the Subscription Offering.
The Information Agent for the Subscription Offering is Beacon Hill
Partners, Inc. Eligible Subscribers should contact the Information Agent with
any questions or if they need additional copies of this Prospectus or any other
document at 1-800-854-9486.
THE PUBLIC OFFERING
All Capital Securities unsold in the Subscription Offering will be offered
to the public in the Public Offering by the Underwriter. The Public Offering
will be made by means of a separate prospectus (the "Public Offering
Prospectus") which will be filed as part of a post-effective amendment to the
Registration Statement of which this Prospectus is a part. The price for the
Capital Securities in the Public Offering will be the same as in the
Subscription Offering.
For its services, the Company has agreed to pay the Underwriter a fee in
an amount equal to 1.8% of the aggregate Liquidation Amount of Capital
Securities sold in the Public Offering. The Company also has agreed to indemnify
the Underwriter and certain other persons under certain circumstances against
certain liabilities and expenses, including liabilities under the Securities Act
and will contribute payments the Underwriter may be required to make in respect
thereof.
The Company has agreed, subject to certain exceptions, not to sell any
Common Stock or Capital Securities within 120 days from the date of the
commencement of the Public Offering without the written consent of the
Underwriter.
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The Public Offering will be made by the Underwriter pursuant to the
requirements of Section 2810 of the Conduct Rules of the National Association
of Securities Dealers, Inc.
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the Capital
Securities will be passed upon on behalf of the Company and the Trust by
Richards, Layton & Finger P.A., special Delaware counsel to the Company and the
Trust. The validity under New York law of the Junior Subordinated Debentures and
the Guarantee will be passed upon for the Company and the Trust by Weil, Gotshal
& Manges LLP, New York, New York. Certain legal matters will be passed upon for
the Underwriter by Alston & Bird LLP, Washington, D.C. Weil, Gotshal & Manges
LLP will rely on Richards, Layton & Finger P.A. as to certain matters of
Delaware law.
EXPERTS
The consolidated financial statements of the Company as of September 30,
1996 and 1995 and for each of the years in the three-year period ended September
30, 1996, have been incorporated by reference herein and in this registration
statement in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
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<TABLE>
<CAPTION>
============================================== ======================================================
<S> <C>
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL NEW YORK BANCORP
HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION CAPITAL TRUST
OR TO MAKE ANY REPRESENTATIONS OTHER THAN
CONTAINED OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS IN CONNECTION WITH THE OFFER
MADE BY THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN 2,000,000
AUTHORIZED BY NEW YORK BANCORP INC., NEW
YORK BANCORP CAPITAL TRUST, THE SALES AGENT
OR THE UNDERWRITER. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
AND THEREUNDER SHALL UNDER ANY CIRCUMSTANCE
CREATE AN IMPLICATION THAT THERE HAS NOT 8.00% CONVERTIBLE TRUST PREFERRED
BEEN ANY CHANGE IN THE AFFAIRS OF NEW YORK SECURITIES
BANCORP INC. OR NEW YORK BANCORP CAPITAL
TRUST SINCE THE DATE HEREOF. THIS PROSPECTUS FULLY AND UNCONDITIONALLY GUARANTEED,
DOES NOT CONSTITUTE AN OFFER OR SOLICITATION THE EXTENT SET FORTH HEREIN, BY
BY ANYONE IN ANY STATE IN WHICH SUCH OFFER
OR SOLICITATIONIS NOT AUTHORIZED OR IN WHICH
THE PERSON MAKING SUCH OFFER IS NOT QUALIFIED NEW YORK BANCORP INC.
TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION.
TABLE OF CONTENTS
PAGE
----
Available Information................ 1 PROSPECTUS
Incorporation of Certain Documents by
Reference.......................... 1
Prospectus Summary................... 3
Risk Factors......................... 9
New York Bancorp Inc................. 15
Use of Proceeds...................... 16
Ratios of Earnings to Fixed Charges.. 17
Capitalization....................... 18
Selected Consolidated Financial and
Other Data ........................ 19
The Trust............................ 22
Description of Capital Securities.... 22 ___________, 1997
Description of Junior Convertible
Subordinated Debentures............ 33
Description of the Guarantee......... 43
Relationship Among the Capital
Securities, the Junior
Subordinated Debentures
and the Guarantee.................. 46
Description of New York Bancorp
Inc. Capital Stock................. 47
Certain Federal Income Tax
Considerations..................... 52
ERISA Considerations................. 56
The Offerings........................ 57
Legal Matters........................ 60
Experts.............................. 60
============================================== ======================================================
</TABLE>
<PAGE>
PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated amounts of the expenses of and related to the Offerings are
as follows:
Registration Fee -- Securities and Exchange Commission...... $ 15,152
NASD Fee.................................................... 5,500
NYSE Fee.................................................... 29,500
Printing and engraving expenses............................. 100,000
Underwriter's Subscription Offering advisory fee............ 600,000
Accounting fees and expenses................................ 27,000
Legal fees and expenses..................................... 200,000
Trustees' and Sales Agent's fees and expenses............... 19,000
Information Agent's fee..................................... 9,500
Miscellaneous............................................... $ 14,348
-------
Total...................................................... $1,020,000
=========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Restated Certificate of Incorporation of the Company (the "Company
Certificate") provides, as permitted be Section 102(b)(7) of the Delaware
General Corporation Law (the "DGCL"), that a director of the Company shall not
be personally liable to the Company or its stockholders for monetary damages for
breach of a fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or
(iv) for any transaction from which the director derived an improper personal
benefit.
The Company Certificate further provides that each person who was or is
made a party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative ("Proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such Proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Company to the fullest extent authorized by
the DGCL, against all expenses, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that the
Company shall indemnify any such person seeking indemnity in connection with a
Proceeding (or part thereof) initiated by such person only if such Proceeding
(or part thereof) was authorized by the Company's Board of Directors.
Section 145 of the DGCL empowers a Delaware corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
II-1
<PAGE>
right of the corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of such corporation or is or was serving at
the request of such corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise. Such
indemnification may include expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding, provided that such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe such
person's conduct was unlawful. A Delaware corporation is permitted to indemnify
directors, officers, employees and other agents of such corporation in an action
by or in the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the person to be
indemnified has been adjudged to be liable to the corporation. Where a director,
officer, employee or agent of the corporation is successful on the merits or
otherwise in the defense of any action, suit or proceeding referred to above or
in defense of any claim, issue or matter therein, the corporation must indemnify
such person against the expenses (including attorneys' fees) which he or she
actually and reasonably incurred in connection therewith.
ITEM 16. EXHIBITS.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
4.1 Restated Certificate of Incorporation of the Company. (1)
4.2 Bylaws of the Company, as amended. (2)
4.3 Certificate of Trust of New York Bancorp Capital Trust (the
"Trust"), dated August 28, 1997.*
4.4 Form of Amended and Restated Declaration of Trust of the Trust,
among the Company, as sponsor, the Administrators party thereto,
The Bank of New York (Delaware), as Delaware Trustee, The Bank of
New York, as Property Trustee and the holders from time to time of
undivided interests in the assets of the Trust.
4.5 Form of Indenture, between the Company and The Bank of New York,
as Trustee.
4.6 Form of Capital Security Certificate (included in the Declaration
filed as Exhibit 4.4 to this Registration Statement).
4.7 Form of Junior Subordinated Debenture (included in the Indenture
filed as Exhibit 4.5 to this Registration Statement).
4.8 Form of Capital Securities Guarantee Agreement, between the
Company and The Bank of New York, as Guarantee Trustee.
4.9 Subscription Form and related letters.
5.1 Opinion of Richards, Layton & Finger P.A. as to validity of the
Capital Securities.
5.2 Opinion of Weil, Gotshal & Manges LLP as to validity of the Junior
Subordinated Debentures, the Guarantee to be issued by the Company
and the Common Stock issuable upon conversion of the Capital
Securities.
8.1 Opinion of Weil, Gotshal & Manges LLP as to certain federal income
tax matters.
12.1 Statement of Computation of Ratios of Earnings to Fixed Charges.*
23.1 Consent of KPMG Peat Marwick LLP, independent public accountants
for the Company.
23.2 Consent of Richards, Layton & Finger P.A. (included in the opinion
filed as Exhibit 5.1 to this Registration Statement).
23.3 Consent of Weil, Gotshal & Manges LLP (included in the opinion
filed as Exhibit 5.2 to this Registration Statement).
23.4 Consent of Weil, Gotshal & Manges LLP (included in the opinion
filed as Exhibit 8 to this Registration Statement).
24.1 Powers of Attorney.*
II-2
<PAGE>
25.1 Form T-1 Statement of Eligibility of The Bank of New York to act
as trustee under the Declaration.
25.2 Form T-1 Statement of Eligibility of The Bank of New York to act
as trustee under the Indenture.
25.3 Form T-1 Statement of Eligibility of The Bank of New York to act
as trustee under the Guarantee.
99.1 Form of Letter to Stockholders.*
99.2 Securities Offering Questions and Answers relating to the
Subscription Offering.
- -------------------------------
* Previously filed.
(1) Previously filed as Exhibit 3.1 to the Company's Annual Report on Form
10-K for the year ended September 30, 1996 and incorporated herein by
reference.
(2) Previously filed as Exhibit 3 to the Company's Annual Report on Form 10-K
for the year ended September 30, 1992 and incorporated herein by
reference.
ITEM 17. UNDERTAKINGS.
(a) The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, as amended (the "Securities
Act"), each filing of the Company's annual report pursuant to Section 13(a) or
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.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred by a director, officer or controlling person of the Company 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, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(c) The Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that if has reasonable grounds to believe that it meets all
the requirements for Filing on Form S-3 and has duly caused this Amendment No. 1
to the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Douglaston, State of New York, on this
19th day of September, 1997.
NEW YORK BANCORP INC.
By: /s/ Michael A. McManus, Jr.
----------------------------------
Michael A. McManus, Jr.
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed below by the following
persons on behalf of the Company and in the capacities indicated, on the date
set forth above.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Chairman of the Board September 19, 1997
- --------------------------------
Patrick E. Malloy, III
/s/ Michael A. McManus, Jr. President and Chief Executive Officer September 19, 1997
- --------------------------------
Michael A. McManus, Jr.
* Senior Vice President, Controller, September 19, 1997
- -------------------------------- Secretary and Director (principal
Stan I. Cohen financial and accounting officer)
* Director September 19, 1997
- --------------------------------
Josiah T. Austin
* Director September 19, 1997
- --------------------------------
Geraldine A. Ferraro
* Director September 19, 1997
- --------------------------------
Peter D. Goodson
* Director September 19, 1997
- --------------------------------
John E.D. Grunow
* Director September 19, 1997
- --------------------------------
Walter R. Ruddy
* Director September 19, 1997
- --------------------------------
Gene A. Washington
*By: /s/ Michael A. McManus, Jr. September 19, 1997
----------------------------------
Michael A. McManus, Jr.
Attorney-in-fact
</TABLE>
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, New York
Bancorp Capital Trust certifies that if has reasonable grounds to believe that
it meets all the requirements for Filing on Form S-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Douglaston, State of New
York on this 19th day of September 1997.
NEW YORK BANCORP CAPITAL TRUST
By: NEW YORK BANCORP INC.,
as Sponsor
By: /s/ Michael A. McManus, Jr.
----------------------------------------
Michael A. McManus, Jr.
President and Chief Executive Officer
II-5
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ------------------------------------------------------------------
4.1 Restated Certificate of Incorporation of the Company. (1)
4.2 Bylaws of the Company, as amended. (2)
4.3 Certificate of Trust of New York Bancorp Capital Trust (the
"Trust"), dated August 28, 1997.*
4.4 Form of Amended and Restated Declaration of Trust of the Trust,
among the Company, as sponsor, the Administrators party thereto,
The Bank of New York (Delaware), as Delaware Trustee, The Bank of
New York, as Property Trustee and the holders from time to time of
undivided interests in the assets of the Trust.
4.5 Form of Indenture, between the Company and The Bank of New York,
as Trustee.
4.6 Form of Capital Security Certificate (included in the Declaration
filed as Exhibit 4.4 to this Registration Statement).
4.7 Form of Junior Subordinated Debenture (included in the Indenture
filed as Exhibit 4.5 to this Registration Statement).
4.8 Form of Capital Securities Guarantee Agreement, between the
Company and The Bank of New York, as Guarantee Trustee.
4.9 Subscription Form and related letters.
5.1 Opinion of Richards, Layton & Finger P.A. as to validity of the
Capital Securities.
5.2 Opinion of Weil, Gotshal & Manges LLP as to validity of the Junior
Subordinated Debentures, the Guarantee to be issued by the Company
and the Common Stock issuable upon conversion of the Capital
Securities.
8.1 Opinion of Weil, Gotshal & Manges LLP as to certain federal income
tax matters.
12.1 Statement of Computation of Ratios of Earnings to Fixed Charges.*
23.1 Consent of KPMG Peat Marwick LLP, independent public accountants
for the Company.
23.2 Consent of Richards, Layton & Finger P.A. (included in the opinion
filed as Exhibit 5.1 to this Registration Statement).
23.3 Consent of Weil, Gotshal & Manges LLP (included in the opinion
filed as Exhibit 5.2 to this Registration Statement).
23.4 Consent of Weil, Gotshal & Manges LLP (included in the opinion
filed as Exhibit 8 to this Registration Statement).
24.1 Powers of Attorney.*
25.1 Form T-1 Statement of Eligibility of The Bank of New York to act
as trustee under the Declaration.
25.2 Form T-1 Statement of Eligibility of The Bank of New York to act
as trustee under the Indenture.
25.3 Form T-1 Statement of Eligibility of The Bank of New York to act
as trustee under the Guarantee.
99.1 Form of Letter to Stockholders.*
99.2 Securities Offering Questions and Answers relating to the
Subscription Offering.
- -------------------------------
* Previously filed.
(1) Previously filed as Exhibit 3.1 to the Company's Annual Report on Form
10-K for the year ended September 30, 1996 and incorporated herein by
reference.
(2) Previously filed as Exhibit 3 to the Company's Annual Report on Form 10-K
for the year ended September 30, 1992 and incorporated herein by
reference.
II-6
EXHIBIT 4.4
================================================================================
AMENDED AND RESTATED DECLARATION
OF TRUST
NEW YORK BANCORP CAPITAL TRUST
DATED AS OF ________________, 1997
================================================================================
NYFS10...:\81\65281\0001\1819\DEC8157P.55E
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS............................................. 2
SECTION 1.1 Definitions........................................... 2
ARTICLE II
TRUST INDENTURE ACT........................................................ 9
SECTION 2.1 Trust Indenture Act; Application...................... 9
SECTION 2.2 Lists of Holders of Securities........................ 10
SECTION 2.3 Reports by the Property Trustee....................... 10
SECTION 2.4 Periodic Reports to Property Trustee.................. 10
SECTION 2.5 Evidence of Compliance with Conditions Precedent...... 11
SECTION 2.6 Events of Default; Waiver............................. 11
SECTION 2.7 Event of Default; Notice.............................. 13
ARTICLE III
ORGANIZATION............................................................... 14
SECTION 3.1 Name.................................................. 14
SECTION 3.2 Office................................................ 14
SECTION 3.3 Purpose............................................... 14
SECTION 3.4 Authority............................................. 15
SECTION 3.5 Title to Property of the Trust........................ 15
SECTION 3.6 Powers and Duties of the Administrators............... 15
SECTION 3.7 Prohibition of Actions by the Trust, the Trustees
and the Administrators................................ 18
SECTION 3.8 Powers and Duties of the Property Trustee............. 19
SECTION 3.9 Certain Additional Duties and Responsibilities of
the Property Trustee.................................. 22
SECTION 3.10 Certain Rights of the Property Trustee................ 24
SECTION 3.11 Delaware Trustee...................................... 26
SECTION 3.12 Not Responsible for Recitals or Issuance of Securities 27
SECTION 3.13 Duration of Trust..................................... 27
SECTION 3.14 Mergers............................................... 27
ARTICLE IV
SPONSOR.................................................................... 29
SECTION 4.1 Sponsor's Purchase of Common Securities............... 29
SECTION 4.2 Responsibilities of the Sponsor....................... 29
SECTION 4.3 Right to Proceed...................................... 30
i
<PAGE>
Page
ARTICLE V
TRUSTEES AND ADMINISTRATORS................................................ 30
SECTION 5.1 Number of Trustees and Administrators; Appointment
of Co-Trustee......................................... 30
SECTION 5.2 Delaware Trustee...................................... 31
SECTION 5.3 Property Trustee; Eligibility......................... 32
SECTION 5.4 Certain Qualifications of Administrators and
Delaware Trustee Generally............................ 33
SECTION 5.5 Administrators........................................ 33
SECTION 5.6 Appointment, Removal and Resignation of Trustees and
Administrators........................................ 33
SECTION 5.7 Vacancies Among Trustees and Administrators........... 35
SECTION 5.8 Effect of Vacancies................................... 35
SECTION 5.9 Meetings.............................................. 36
SECTION 5.10 Delegation of Power................................... 36
SECTION 5.11 Merger, Conversion, Consolidation or Succession
to Business........................................... 37
ARTICLE VI
DISTRIBUTIONS.............................................................. 37
SECTION 6.1 Distributions......................................... 37
ARTICLE VII
ISSUANCE OF SECURITIES..................................................... 37
SECTION 7.1 General Provisions Regarding Securities............... 37
SECTION 7.2 Execution and Authentication.......................... 38
SECTION 7.3 Form and Dating....................................... 39
SECTION 7.4 Definitive Capital Securities......................... 40
SECTION 7.5 Registrar, Paying Agent and Conversion Agent.......... 41
SECTION 7.6 Paying Agent to Hold Money in Trust................... 42
SECTION 7.7 Replacement Securities................................ 42
SECTION 7.8 Outstanding Capital Securities........................ 43
SECTION 7.9 Capital Securities in Treasury........................ 43
SECTION 7.10 Temporary Securities.................................. 43
SECTION 7.11 Cancellation.......................................... 43
SECTION 7.12 CUSIP Numbers......................................... 44
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST....................................... 44
SECTION 8.1 Dissolution and Termination of Trust.................. 44
ARTICLE IX
TRANSFER OF INTERESTS...................................................... 45
SECTION 9.1 Transfer of Securities................................ 45
SECTION 9.2 Transfer Procedures and Restrictions.................. 46
ii
<PAGE>
Page
SECTION 9.3 Book Entry Interests.................................. 50
SECTION 9.4 Notices to Clearing Agency............................ 51
SECTION 9.5 Appointment of Successor Clearing Agency.............. 51
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS.................................. 51
SECTION 10.1 Liability............................................. 51
SECTION 10.2 Exculpation........................................... 52
SECTION 10.3 Fiduciary Duty........................................ 53
SECTION 10.4 Indemnification....................................... 54
SECTION 10.5 Outside Businesses.................................... 57
SECTION 10.6 Compensation; Fees.................................... 57
ARTICLE XI
ACCOUNTING................................................................. 58
SECTION 11.1 Fiscal Year........................................... 58
SECTION 11.2 Certain Accounting Matters............................ 58
SECTION 11.3 Banking............................................... 59
SECTION 11.4 Withholding........................................... 59
ARTICLE XII
AMENDMENTS AND MEETINGS.................................................... 59
SECTION 12.1 Amendments............................................ 59
SECTION 12.2 Meetings of the Holders; Action by Written Consent.... 62
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE....................................................... 64
SECTION 13.1 Representations and Warranties of Property Trustee.... 64
SECTION 13.2 Representations and Warranties of Delaware Trustee.... 64
ARTICLE XIV
MISCELLANEOUS.............................................................. 65
SECTION 14.1 Notices............................................... 65
SECTION 14.2 Governing Law......................................... 67
SECTION 14.3 Intention of the Parties.............................. 67
SECTION 14.4 Headings.............................................. 68
SECTION 14.5 Successors and Assigns................................ 68
SECTION 14.6 Partial Enforceability................................ 68
SECTION 14.7 Counterparts.......................................... 68
iii
<PAGE>
Page
ANNEX I
TERMS OF 8.00% CONVERTIBLE TRUST PREFERRED SECURITIES
8.00% CONVERTIBLE TRUST COMMON SECURITIES................................ I-1
EXHIBIT A-1
FORM OF CONVERTIBLE TRUST PREFERRED SECURITY CERTIFICATE................. A-1
EXHIBIT B-1
FORM OF COMMON SECURITY CERTIFICATE...................................... B-1
iv
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
NEW YORK BANCORP CAPITAL TRUST
_____________________, 1997
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of _______________, 1997, by the Trustees (as defined herein), the
Administrators (as defined herein), the Sponsor (as defined herein) and by the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust (as defined herein) to be issued pursuant to this Declaration;
WHEREAS, the Delaware Trustee, the Property Trustee, the Initial
Trustee and the Sponsor established New York Bancorp Capital Trust (the
"Trust"), a trust created under the Business Trust Act (as defined herein)
pursuant to a Declaration of Trust dated as of August 28, 1997 (the "Original
Declaration"), and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on August 28, 1997, for the sole purpose of issuing and
selling certain securities representing undivided beneficial interests in the
assets of the Trust and investing the proceeds thereof in certain Debentures of
the Debenture Issuer (each as hereinafter defined);
WHEREAS, all of the trustees of the Trust, the Administrators and
the Sponsor, by this Declaration, amend and restate each and every term and
provision of the Original Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
<PAGE>
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of and Annexes and Exhibits to
this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Administrator" has the meaning set forth in Section 5.1.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent, Registrar or Conversion Agent.
"Authorized Officer" of a Person means any other Person that is
authorized to legally bind such former Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate registered in the name of a Clearing Agency or its nominee,
ownership and transfers of which
2
<PAGE>
shall be maintained and made through book entries by a Clearing Agency as
described in Sections 9.2 and 9.3.
"Business Day" means any day other than a Saturday or a Sunday or a
day on which banking institutions in the City of New York or Douglaston, New
York are authorized or required by law or executive order to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. ss.3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Capital Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Capital Securities" has the meaning specified in Section 7.1(a).
"Capital Securities Guarantee" means the Capital Securities
Guarantee Agreement, dated as of ___________________, 1997, by the Sponsor as
guarantor and The Bank of New York, as Capital Securities Guarantee Trustee,
with respect to the Capital Securities.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Capital Securities and in whose name or in the name of a nominee of that
organization shall be registered a Global Certificate and which shall undertake
to effect book entry transfers and pledges of the Capital Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Time" means _________, 1997.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation.
3
<PAGE>
"Commission" means the United States Securities and Exchange
Commission as from time to time constituted, or if any time after the execution
of this Declaration such Commission is not existing and performing the duties
now assigned to it under applicable Federal securities laws, then the body
performing such duties at such time.
"Common Securities" has the meaning specified in Section 7.1(a).
"Common Securities Guarantee" means the Common Securities Guarantee
Agreement, dated as of _________________, 1997, by the Sponsor as guarantor,
with respect to the Common Securities.
"Common Securities Subscription Agreement" means the subscription
agreement dated as of ___________________, 1997 between the Trust and the
Sponsor relating to the Common Securities representing undivided beneficial
interests in the assets of the Trust.
"Common Stock" means the common stock, $0.01 par value per share, of
the Sponsor.
"Company Indemnified Person" means (a) any Administrator; (b) any
Affiliate of any Administrator; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Administrator; or
(d) any officer, employee or agent of the Trust or its Affiliates.
"Conversion Agent" has the meaning specified in Section 7.5.
"Corporate Trust Office" means the office of the Property Trustee at
which the corporate trust business of the Property Trustee, at any particular
time, shall be principally administered, which office at the date of execution
of this Declaration is located at 101 Barclay Street, Floor 21 West, New York,
New York 10286.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any Holder of Securities.
"Debenture Issuer" means New York Bancorp Inc., a Delaware
corporation, or any successor entity resulting from any consolidation,
amalgamation, merger or other business combination, in its capacity as issuer of
the Debentures under the Indenture.
4
<PAGE>
"Debenture Subscription Agreement" means the Subscription Agreement
dated as of ____________________, 1997 between the Sponsor and the Trust
relating to the Debentures issuable pursuant to the Indenture.
"Debenture Trustee" means The Bank of New York, a New York banking
corporation, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Debentures" means the 8.00% Junior Convertible Subordinated
Debentures due October 31, 2027 of the Debenture Issuer issued pursuant to the
Indenture.
"Default" means an event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Definitive Capital Securities" shall have the meaning set forth in
Section 7.4.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Direct Action" shall have the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders in accordance
with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" in respect of the Securities means an Event of
Default (as defined in the Indenture) that has occurred and is continuing in
respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Global Capital Security" has the meaning set forth in Section
7.3(a).
"Holder" means a Person in whose name a Security is registered, such
Person being a beneficial owner within the meaning of the Business Trust Act.
5
<PAGE>
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture, dated as of ____________________,
1997, between the Debenture Issuer and The Bank of New York, as amended from
time to time.
"Initial Trustee" shall mean Stan I. Cohen, not in his individual
capacity but solely in his capacity as initial trustee of the Trust.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940,
as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Majority in liquidation amount" means, with respect to the Trust
Securities, except as provided in the terms of the Capital Securities or by the
Trust Indenture Act, Holder(s) of outstanding Trust Securities voting together
as a single class or, as the context may require, Holders of outstanding Capital
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class.
"Officer's Certificate" means, with respect to any Person, a
certificate signed by the Chairman, the Co-Chairman, a Vice Chairman, the Chief
Executive Officer, the President, a Vice President, the Comptroller, the
Secretary or an Assistant Secretary of such Person. Any Officer's Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Declaration shall include:
(a) a statement that the officer signing the 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 such officer in rendering the Certificate;
6
<PAGE>
(c) a statement that 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 such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" shall mean a written opinion of counsel, who
may be an employee of the Sponsor, and who shall be acceptable to the Property
Trustee.
"Paying Agent" has the meaning specified in Section 7.5.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Property Trustee" has the meaning set forth in Section 5.3(a).
"Property Trustee Account" has the meaning set forth in Section
3.8(c).
"Prospectus" has the meaning set forth in Section 4.2(a).
"Public Offering" means the public offering of all Capital
Securities not sold in the Subscription Offering, if any, on a best-efforts
basis.
"Quorum" means a majority of the Administrators or, if there are
only two Administrators, both of them.
"Registrar" has the meaning set forth in Section 7.5.
"Registration Statement" means the Registration Statement on Form
S-3, including any amendments thereto, relating to, among other securities, the
Capital Securities.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
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"Responsible Officer" means, with respect to the Property Trustee,
any officer within the Corporate Trust Office of the Property Trustee, including
any vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any trust officer, any senior trust officer or other
officer of the Corporate Trust Office of the Property Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Securities" or "Trust Securities" means the Common Securities and
the Capital Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and
the Capital Securities Guarantee.
"Special Event" has the meaning set forth in Annex I hereto.
"Sponsor" means New York Bancorp Inc., a Delaware corporation, or
any successor entity resulting from any merger, consolidation, amalgamation or
other business combination, in its capacity as sponsor of the Trust.
"Subscription Offering" means the offering of Capital Securities
through nontransferable subscription rights granted to holders of record of the
Common Stock as of September 18, 1997.
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"10% in liquidation amount" means, with respect to the Trust
Securities, except as provided in the terms of the Capital Securities or by the
Trust Indenture Act, Holder(s) of outstanding Trust Securities voting together
as a single class or, as the context may require, Holders of outstanding Capital
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of 10% or more of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class.
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"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"Underwriting Agreement" means the Underwriting Agreement among the
Sponsor, the Trust and Keefe, Bruyette & Woods, Inc., as underwriter, in
connection with the Public Offering of the Capital Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and, to the
extent applicable, shall 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 and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by ss.ss. 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
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SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Administrators on behalf of the
Trust shall provide the Property Trustee, unless the Property Trustee is
Registrar for the Securities (i) within 14 days after each record date for
payment of Distributions, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Holders ("List of
Holders") as of such record date, provided that neither the Sponsor nor the
Administrators on behalf of the Trust shall be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Property Trustee by the Sponsor and the
Administrators on behalf of the Trust, and (ii) at any other time, within 30
days of receipt by the Trust of a written request for a List of Holders as of a
date no more than 14 days before such List of Holders is given to the Property
Trustee. The Property Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of Holders given to
it or which it receives in the capacity as Paying Agent (if acting in such
capacity), provided that the Property Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under
ss.ss.311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year, commencing May 15, 1998,
the Property Trustee shall provide to the Holders of the Capital Securities such
reports as are required by ss. 313(a) of the Trust Indenture Act, if any, in the
form and in the manner provided by ss. 313 of the Trust Indenture Act. The
Property Trustee shall also comply with the other requirements of ss. 313 of the
Trust Indenture Act. The Sponsor shall promptly notify the Property Trustee if
and when the Capital Securities are listed on any stock exchange.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Administrators on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
are required by ss. 314 (if any) and the compliance certificate required by ss.
314 of the Trust Indenture Act in the form, in the manner and at the times
required by ss. 314(a)(4) of the Trust Indenture Act, such compliance
certificate to be delivered annually on or before 120 days after the end of each
fiscal year of the Sponsor; provided, that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act shall be
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filed with the Property Trustee within 15 days after the same is required to be
filed with the Commission.
Delivery of such reports, information and documents to the Property
Trustee is for informational purposes only and the Property Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Trust's compliance with any of its covenants hereunder (as to which the Trustee
is entitled to rely exclusively on Officer's Certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrators on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent provided for in this Declaration that relate to any of the
matters set forth in ss. 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to ss. 314(c) (1) of the
Trust Indenture Act may be given in the form of an Officer's Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of Capital
Securities may, by vote, on behalf of the Holders of all of the Capital
Securities, waive any past Event of Default in respect of the Capital Securities
and its consequences, provided that, if the underlying Event of Default under
the Indenture:
(i) is not waivable under the Indenture, the Event of Default
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority
in aggregate principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, the Event of Default under the
Declaration may only be waived by the vote of the Holders of at least the
proportion in aggregate liquidation amount of the Capital Securities that the
relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of ss.
316(a)(1)(B) of the Trust Indenture Act and such ss. 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Capital Securities arising therefrom shall be deemed to have been cured, for
every purpose of
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this Declaration, but no such waiver shall extend to any subsequent or other
default or an Event of Default with respect to the Capital Securities or impair
any right consequent thereon. Any waiver by the Holders of the Capital
Securities of an Event of Default with respect to the Capital Securities shall
also be deemed to constitute a waiver by the Holders of the Common Securities of
any such Event of Default with respect to the Common Securities for all purposes
of this Declaration without any further act, vote or consent of the Holders of
the Common Securities.
The Holders of a Majority in liquidation amount of the Capital
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee or to
direct the exercise of any trust or power conferred upon the Property Trustee,
including the right to direct the Property Trustee to exercise the remedies
available to it as a holder of the Debentures; provided, however, that (subject
to the provisions of Section 3.9) the Property Trustee shall have the right to
decline to follow any such direction if the Property Trustee, upon the advice of
counsel, shall determine that the action so directed would be unjustly
prejudicial to the Holders not taking part in such direction or if the Property
Trustee, upon the advice of counsel, determines that the action or proceeding so
directed may not lawfully be taken or if the Property Trustee, in good faith, by
its board of directors or trustees, executive committee, or a trust committee of
directors or trustees, and/or Responsible Officers, shall determine that the
action or proceeding so directed would involve the Property Trustee in personal
liability.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event of Default
under the Declaration as provided below in this Section 2.6(b), the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to have
waived such Event of Default under the Declaration as provided below in this
Section 2.6(b), the Event of Default under the Declaration may only be waived by
the vote of the Holders of at least the proportion in aggregate liquidation
amount of the Common Securities that the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding;
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provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences if all Events of Default with respect to the
Capital Securities have been cured, waived or otherwise eliminated, and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Capital Securities and only the Holders of the Capital Securities will have
the right to direct the Property Trustee in accordance with the terms of the
Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of
ss.ss. 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such ss.ss.
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby expressly
excluded from this Declaration and the Securities, as permitted by the Trust
Indenture Act. Subject to the foregoing provisions of this Section 2.6(b), upon
such waiver, any such default shall cease to exist and any Event of Default with
respect to the Common Securities arising therefrom shall be deemed to have been
cured for every purpose of this Declaration, but no such waiver shall extend to
any subsequent or other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee, at the direction of the Holders of the Capital Securities,
constitutes a waiver of the corresponding Event of Default under this
Declaration. The foregoing provisions of this Section 2.6(c) shall be in lieu of
ss. 316(a)(1)(B) of the Trust Indenture Act and such ss. 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Property Trustee, within 90 days after the occurrence of an
Event of Default, shall transmit by mail, first class postage prepaid, to the
Holders notice of all defaults with respect to the Securities actually known to
a Responsible Officer of the Property Trustee, unless such defaults have been
cured before the giving of such notice (the term "defaults" for the purposes of
this Section 2.7(a) being hereby defined to be an Event of Default as defined in
the Indenture, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided that,
except for a default in the payment of principal of (or premium, if any) or
interest on any of the Debentures, the Property Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Property
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders.
(b) The Property Trustee shall not be deemed to have knowledge of
any default except:
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(i) a default under Sections 5.1(a) and 5.1(b) of the
Indenture; or
(ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible Officer of the Property
Trustee charged with the administration of the Declaration shall have actual
knowledge.
(c) Within ten Business Days after the occurrence of any Event of
Default actually known to the Sponsor, the Sponsor shall transmit notice of such
Event of Default to the holders of the Capital Securities, the Administrators
and the Property Trustee, unless such Event of Default shall have been cured or
waived. The Sponsor and the Administrators shall file annually with the Property
Trustee a certification as to whether or not they are in compliance with all the
conditions and covenants applicable to them under this Declaration.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "New York Bancorp Capital Trust" as such name may
be modified from time to time by the Administrators following written notice to
the Holders of Securities and the Trustees. The Trust's activities may be
conducted under the name of the Trust or any other name deemed advisable by the
Administrators.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o New York
Bancorp Inc., 241-02 Northern Boulevard, Douglaston, New York 11362. On ten
Business Days written notice to the Holders of Securities and the Trustees, the
Administrators may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue
and sell the Securities, (b) use the proceeds from the sale of the Securities to
acquire the Debentures, and (c) except as otherwise limited herein, to engage in
only those other activities necessary, advisable or incidental thereto. The
Trust shall not borrow money, issue debt or reinvest proceeds derived from
investments, mortgage or pledge any of its assets, or otherwise
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undertake (or permit to be undertaken) any activity that would cause the Trust
not to be classified for United States federal income tax purposes as a grantor
trust.
SECTION 3.4 Authority.
Except as specifically provided in this Declaration, the
Administrators and the Property Trustee shall have exclusive and complete
authority to carry out the purposes of the Trust. An action taken by a Trustee
or an Administrator in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees or the Administrators
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Trustees or the Administrators to bind the Trust. Persons
dealing with the Trust are entitled to rely conclusively on the power and
authority of the Trustees as set forth in this Declaration. The Administrators
shall have only those ministerial duties set forth herein with respect to
accomplishing the purposes of the Trust and are not intended to be trustees or
fiduciaries with respect to the Trust or the Holders of Securities. The Property
Trustee shall have the right, but shall not be obligated except as provided in
Section 3.8, to perform those duties assigned to the Administrators.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and
the Property Trustee Account or as otherwise provided in this Declaration, legal
title to all assets of the Trust shall be vested in the Trust. The Holders shall
not have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Administrators.
The Administrators shall have the power, duty and authority to cause
the Trust to engage in the following activities:
(a) to issue and sell the Securities in accordance with this
Declaration; provided, however, that (i) the Trust may issue no more than one
series of Capital Securities (as contemplated in Section 7.1(a)) and no more
than one series of Common Securities, (ii) there shall be no interests in the
Trust other than the Securities, and (iii) the issuance of Securities shall be
limited to a simultaneous issuance of Capital Securities and Common Securities
at the Closing Time;
(b) in connection with the issue and sale of the Capital Securities,
at the direction of and to the extent so directed by the Sponsor, to:
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(i) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to qualify
or register all or part of the Capital Securities in any State in which the
Sponsor has determined to qualify or register such Capital Securities for sale;
(ii) at the direction of the Sponsor, execute and file an
application, prepared by the Sponsor, to the New York Stock Exchange or any
other national stock exchange or the Nasdaq Stock Markets National Market for
listing or quotation of the Capital Securities;
(iii) execute and deliver letters, documents, or instruments
with DTC and other Clearing Agencies relating to the Capital Securities;
(iv) if required, execute and file with the Commission a
registration statement on Form 8-A, including any amendments thereto, prepared
by the Sponsor, relating to the registration of the Capital Securities under the
Exchange Act;
(v) execute and enter into the Common Securities Subscription
Agreement providing for the purchase from the Trust of the Common Securities;
and
(vi) execute and enter into the Debenture Subscription
Agreement providing for the Trust to purchase the Debentures from the Debenture
Issuer.
(c) to acquire the Debentures with the proceeds of the sale of the
Capital Securities and the Common Securities; provided, however, that the
Administrators shall cause legal title to the Debentures to be held of record in
the name of the Property Trustee for the benefit of the Holders;
(d) to give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Special Event;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of ss.316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and conversions, and to issue relevant
notices to the Holders of Capital Securities and Holders of Common Securities as
to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required
of the Administrators pursuant to the terms of this Declaration or the
Securities;
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(g) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate required by ss. 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Administrator;
(k) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, Registrar and
Conversion Agent for the Securities or to appoint a Paying Agent for the
Securities as provided in Section 7.5 except for such time as such power to
appoint a Paying Agent is vested in the Property Trustee;
(m) to give prompt written notice to the Property Trustee and to
Holders of any notice received from the Debenture Issuer of its election to
defer payments of interest on the Debentures by extending the interest payment
period under the Indenture;
(n) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Capital
Securities or to enable the Trust to effect the purposes for which the Trust was
created;
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(p) to take any action, not inconsistent with this Declaration or
with applicable law, that the Administrators determine in their discretion to be
necessary or desirable in carrying out the activities of the Trust as set out in
this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer for United
States federal income tax purposes.
(q) to take all action necessary to consummate the Subscription
Offering and, if any, the Public Offering; and
(r) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Administrators, on behalf of the
Trust.
The Administrators must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Administrators shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Administrators shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Administrators pursuant to this Section
3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust, the Trustees and
the Administrators.
(a) The Trust shall not, and the Trustees (including the Property
Trustee) and the Administrators shall not, engage in any activity other than as
required or authorized by this Declaration. The Trust shall not:
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(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders pursuant to the
terms of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the Securities; or
(vii) other than as provided in this Declaration or Annex I,
(A) direct the time, method and place of conducting any proceeding with respect
to any remedy available to the Debenture Trustee, or exercising any trust or
power conferred upon the Debenture Trustee with respect to the Debentures, (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 the
Debentures shall be due and payable, or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures where such
consent shall be required unless the Trust shall have received an opinion of a
nationally recognized independent tax counsel experienced in such matters to the
effect that such modification will not affect the Trust's status as a grantor
trust for United States federal income tax purposes.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the
Holders. The right, title and interest of the Property Trustee to the Debentures
shall vest automatically in each Person who may hereafter be appointed as
Property Trustee in accordance with Section 5.6. Such vesting and cessation of
title shall be effective whether or not conveyancing documents with regard to
the Debentures have been executed and delivered.
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(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Administrators or to the Delaware Trustee (if
the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Trustee Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders and, upon the
receipt of payments of funds made in respect of the Debentures held by the
Property Trustee, deposit such funds into the Property Trustee Account and make
payments to the Holders of the Capital Securities and Holders of the Common
Securities from the Property Trustee Account in accordance with Section 6.1.
Funds in the Property Trustee Account shall be held uninvested until disbursed
in accordance with this Declaration. The Property Trustee Account shall be an
account that is maintained with a banking institution that is at least in
compliance with the capital requirements of regulatory authority regulating such
institution;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Capital Securities and
the Common Securities to the extent the Debentures are redeemed or mature or the
conversion of Capital Securities to the extent the Capital Securities are
converted into Common Stock; and
(iii) upon written notice of distribution issued by the
Administrators in accordance with the terms of the Securities, engage in such
ministerial activities as shall be necessary or appropriate to effect the
distribution of the Debentures to Holders of Securities upon the occurrence of
certain events.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of the Securities.
(e) Subject to Section 3.9(a), the Property Trustee may take any
Legal Action which arises out of or in connection with an Event of Default of
which a Responsible Officer of the Property Trustee has actual knowledge or the
Property Trustee's duties and obligations under this Declaration or the Trust
Indenture Act and if such Property Trustee shall have failed to take such Legal
Action, the Holders of the Capital Securities may, to the fullest extent
permitted by law, take such Legal Action, to the same extent as if such Holders
of Capital Securities held an aggregate principal amount of Debentures equal to
the aggregate liquidation amount of such Capital Securities, without first
proceeding against the Property Trustee or the Trust; provided however, that if
an Event of Default has occurred and is
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continuing and such event is attributable to the failure of the Debenture Issuer
to pay the principal of or premium, if any, or interest on the Debentures on the
date such principal, premium, if any, or interest is otherwise payable (or in
the case of prepayment, on the prepayment date), then a Holder of Capital
Securities may directly institute a proceeding for enforcement of payment to
such Holder of the principal of or premium, if any, or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Capital Securities of such Holder (a "Direct Action") on or after the
respective due date specified in the Debentures. In connection with such Direct
Action, the rights of the Holders of the Common Securities will be subrogated to
the rights of such Holder of Capital Securities to the extent of any payment
made by the Debenture Issuer to such Holder of Capital Securities in such Direct
Action. Except as provided in the preceding sentences, the Holders of Capital
Securities will not be able to exercise directly any other remedy available to
the holders of the Debentures.
(f) The Property Trustee shall not resign as a Trustee unless either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders pursuant to the terms of the
Securities; or
(ii) a successor property trustee possessing the
qualifications to act as Property Trustee under Section 5.3 (a "Successor
Property Trustee") has been appointed and has accepted that appointment in
accordance with Section 5.6.
(g) The Property Trustee shall have the legal power to exercise all
of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default actually known to a Responsible Officer of
the Property Trustee occurs and is continuing, the Property Trustee, for the
benefit of Holders, shall enforce its rights as holder of the Debentures subject
to the rights of the Holders pursuant to the terms of such Securities.
(h) The Property Trustee shall be authorized to undertake any
actions set forth in ss. 317(a) of the Trust Indenture Act.
(i) For such time as the Property Trustee is the Paying Agent, the
Property Trustee may authorize one or more Persons to act as additional Paying
Agents and to pay Distributions, redemption payments or liquidation payments on
behalf of the Trust with respect to all Securities and any such Paying Agent
shall comply with ss.317(b) of the Trust Indenture Act. Any such additional
Paying Agent may be removed by the Property Trustee at any time the Property
Trustee remains as Paying Agent and a successor Paying Agent or additional
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Paying Agents may be (but are not required to be) appointed at any time by the
Property Trustee while the Property Trustee is so acting as Paying Agent.
(j) The Property Trustee shall have the power and authority to act
with respect to any of the duties, liabilities, powers or the authority of the
Administrators set forth in Sections 3.6(b)(ii), (m) or (o), but shall not have
a duty to do any such act unless specifically directed to do so in writing by
the Sponsor and then shall be fully protected in acting pursuant to such
direction. In the event of a conflict between the action of the Administrators
and the action of the Property Trustee, the action of the Property Trustee shall
prevail.
The Property Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Property Trustee shall not take any
action that is inconsistent with the purposes and functions of the Trust set out
in Section 3.3.
SECTION 3.9 Certain Additional Duties and Responsibilities of the
Property Trustee.
(a) The Property Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and in the Securities and no implied covenants shall be read
into this Declaration against the Property Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6) of
which a Responsible Officer of the Property Trustee has actual knowledge, the
Property Trustee shall exercise such of the rights and powers vested in it by
this Declaration, 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 or her own affairs.
(b) No provision of this Declaration shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an 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 Property Trustee
shall be determined solely by the express provisions of this Declaration
and in the Securities and the Property Trustee shall not be liable except
for the performance of such duties and
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obligations as are specifically set forth in this Declaration and in the
Securities, and no implied covenants or obligations shall be read into
this Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property 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 Property
Trustee and conforming to the requirements of this Declaration; provided,
however, that in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property Trustee,
unless it shall be proved that the Property Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was made;
(iii) 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 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;
(iv) no provision of this Declaration shall require the
Property 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 it shall have reasonable grounds for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Declaration or indemnity reasonably
satisfactory to the Property Trustee against such risk or liability is not
reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Property Trustee 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 protections and limitations on liability afforded to the Property Trustee
under this Declaration and the Trust Indenture Act;
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(vi) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments levied thereon or in
connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree in writing
with the Sponsor. Money held by the Property Trustee need not be segregated from
other funds held by it except in relation to the Property Trustee Account
maintained by the Property Trustee pursuant to Section 3.8(c)(i) and except to
the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrators or the Sponsor with their
respective duties under this Declaration, nor shall the Property Trustee be
liable for any default or misconduct of the Administrators or the Sponsor.
SECTION 3.10 Certain Rights of the Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Administrators
contemplated by this Declaration may be sufficiently evidenced by an Officer's
Certificate;
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or established
before taking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed), in the absence of bad
faith on its part, may request and conclusively rely upon an Officer's
Certificate which, upon receipt of such request, shall be promptly delivered by
the Sponsor or the Administrators;
(iv) 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 registration thereof;
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(v) the Property Trustee may consult with counsel or other
experts of its selection and the advice or opinion of such counsel and experts
with respect to legal matters or advice within the scope of such experts' area
of expertise shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion, such counsel may be counsel to the
Sponsor 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 from any court of competent
jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at the
request or direction of any Holder, unless such Holder shall have provided to
the Property Trustee security and indemnity, reasonably satisfactory to the
Property Trustee, against the costs, expenses (including reasonable attorney's
fees and expenses and the expenses of the Property Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be requested by
the Property Trustee; provided, that, nothing contained in this Section
3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence
of an Event of Default, of its obligation to exercise the rights and powers
vested in it by this Declaration;
(vii) 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, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Property Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees or attorneys and the Property Trustee shall
not be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Property Trustee or its agents alone shall be sufficient and
effective to perform any such action and no third party shall be required to
inquire as to the authority of the Property Trustee to so act or as to its
compliance with any of the terms and provisions of this Declaration, both of
which shall be conclusively evidenced by the Property Trustees' or its agent's
taking such action;
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(x) whenever in the administration of this Declaration 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 which instructions may
only be given by the Holders of the same proportion in liquidation amount of the
Securities as would be entitled to direct the Property Trustee under the terms
of the 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 protected in conclusively relying
on or acting in accordance with such instructions;
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Declaration; and
(xii) the Property Trustee shall not be liable for any action
taken, suffered or omitted to be taken by it in good faith, without negligence,
and reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Declaration.
(b) No provision of this Declaration 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 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than
Section 5.2, 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 Administrators or the Property Trustee described in this Declaration. Except
as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for the
sole and limited purpose of fulfilling the requirements of ss.3807 of the
Business Trust Act.
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SECTION 3.12 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall
be taken as the statements of the Sponsor, and none of the Trustees or the
Administrators assume any responsibility for their correctness. None of the
Trustees or the Administrators make any representations as to the value or
condition of the property of the Trust or any part thereof. None of the Trustees
or the Administrators make any representations as to the validity or sufficiency
of this Declaration, the Debentures or the Securities.
SECTION 3.13 Duration of Trust.
The Trust, unless dissolved pursuant to the provisions of Article
VIII hereof, shall have existence up to [October 31, 2028].
SECTION 3.14 Mergers.
(a) 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 Person, except as described in Section
3.14(b) and (c) and Section 3 of Annex I.
(b) The Trust may, at the request of the Sponsor, as Holder of the
Common Securities, and without the consent of the Holders, the Delaware Trustee
or the Property Trustee, merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to, a trust organized as such under the
laws of any State; provided that:
(i) if the Trust is not the surviving entity, such successor
entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the
Trust under the Securities; or
(B) substitutes for the Securities other securities
having substantially the same terms as the Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the
Securities rank with respect to Distributions and payments upon
liquidation, redemption and otherwise;
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(ii) the Sponsor expressly appoints a trustee of the Successor
Entity that possesses the same powers and duties as the Property Trustee as the
Holder of the Debentures;
(iii) the Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or with another organization on which the Capital Securities
are then listed or quoted, if any;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders (including any Successor Securities) in any
material respect (other than with respect to any dilution of such Holders'
interests in the new entity);
(v) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vi) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Sponsor has received an opinion
of an 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 (including any Successor
Securities) in any material respect (other than with respect to any
dilution of the Holders' interests in the new entity); and
(B) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor the
Successor Entity will be required to register as an Investment Company;
and
(vii) the Sponsor 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 Capital Securities Guarantee and the Common
Securities Guarantee.
(c) Notwithstanding Section 3.14(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets as an entirety or 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,
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merger, replacement, conveyance, transfer or lease would cause the Trust or the
Successor Entity not to be classified as a grantor trust for United States
federal income tax purposes or result in the Holders recognizing any gain or
loss for federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
At the Closing Time, the Sponsor will purchase all of the Common
Securities then issued by the Trust, in an amount equal to approximately, but
not less than, 3% of the capital of the Trust, at the same time as the Capital
Securities are issued and sold.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Capital Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare one or more prospectuses (each a "Prospectus") in
preliminary and final form, in relation to the offering and sale of Capital
Securities in the Subscription Offering and the Public Offering, and to execute
and file with the Commission, the Registration Statement, including any
amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Capital Securities and to do any
and all such acts, other than actions which must be taken by the Trust, and
advise the Trust of actions it must take, and prepare for execution and filing
any documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
States;
(c) if deemed necessary or advisable by the Sponsor, to prepare for
filing by the Trust an application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for listing or quotation
of the Capital Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A (if necessary) relating to the registration
of the Capital Securities under Section 12(b) of the Exchange Act, including any
amendments thereto; and
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(e) to negotiate the terms of and execute the Underwriting Agreement
in connection with the Public Offering, if any, and other agreements, documents
and instruments providing for the sale of the Capital Securities.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders of Capital
Securities, in the event that a failure of the Trust to pay Distributions on the
Capital Securities is attributable to the failure of the Company to pay interest
or principal on the Debentures, to institute a Direct Action against the
Debenture Issuer for enforcement of its payment obligations on the Debentures.
ARTICLE V
TRUSTEES AND ADMINISTRATORS
SECTION 5.1 Number of Trustees and Administrators; Appointment of
Co-Trustee.
The number of Trustees initially shall be two (2) and the number of
Administrators initially shall be two (2), and:
(a) at any time before the issuance of any Securities, the Sponsor,
by written instrument, may increase or decrease the number of Trustees and
Administrators; and
(b) after the issuance of any Securities, the number of Trustees and
Administrators may be increased or decreased by vote of the Holders of a
Majority in liquidation amount of the Common Securities voting as a class at a
meeting of the Holders of the Common Securities;
provided, however, that, the number of Trustees shall in no event be less than
two (2); and provided further that (1) one Trustee, in the case of a natural
person, shall be a person who is a resident of the State of Delaware or that, if
not a natural person, is an entity which has its principal place of business in
the State of Delaware; (2) there shall be at least one administrator who is an
employee or officer of, or is affiliated with the Sponsor (an "Administrator");
and (3) one Trustee shall be the Property Trustee for so long as this
Declaration is required to qualify as an indenture under the Trust Indenture
Act, and such Trustee may also serve as Delaware Trustee if it meets the
applicable requirements. Notwithstanding the above, unless an Event of Default
shall have occurred and be continuing,
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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 Holders of a Majority in liquidation
amount of the Common Securities acting as a class at a meeting of the Holders of
the Common Securities, and the Administrators 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 the Trust's property, or to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such person or persons in such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of this Declaration. In case an Event of Default has
occurred and is continuing, the Property Trustee alone shall have power to make
any such appointment of a co-trustee.
(c) Effective as of the date of this Declaration, without any
further action by any Person, the Initial Trustee shall cease to be a trustee of
the Trust and the only trustees of the Trust shall be the Trustees, as their
number may increase or decrease from time to time in accordance with the
provisions of this Declaration.
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) 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 law,
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
(c) The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
White Clay Center, Rte 273
Newark, Delaware 19711
Attention: Corporate Trust Administration
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SECTION 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (the "Property Trustee")
which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof or of the
District of Columbia, or a Person permitted by the Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia authority. If
such Person publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred to above,
then for the purposes of this Section 5.3(a)(ii), the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the Property Trustee shall cease to be eligible
to so act under Section 5.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of ss. 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in ss. 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of ss. 310(b) of the Trust Indenture Act,
subject to the penultimate paragraph thereof.
(d) The Capital Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first proviso contained in ss. 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Administration
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SECTION 5.4 Certain Qualifications of Administrators and Delaware
Trustee Generally.
Each Administrator and the Delaware Trustee (unless the Property
Trustee also acts as Delaware 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
Authorized Officers.
SECTION 5.5 Administrators.
The initial Administrators shall be:
Stan I. Cohen and David Fry
New York Bancorp Inc.
241-02 Northern Boulevard
Douglaston, New York 11362
(a) Except as expressly set forth in this Declaration and except if
a meeting of the Administrators is called with respect to any matter over which
the Administrators have power to act, any power of the Administrators may be
exercised by, or with the consent of, any one such Administrator.
(b) Except as otherwise required by the Business Trust Act or
applicable law, any Administrator is authorized to execute on behalf of the
Trust any documents which the Administrators have the power and authority to
cause the Trust to execute pursuant to Section 3.6.
SECTION 5.6 Appointment, Removal and Resignation of Trustees and
Administrators.
(a) Subject to Section 5.6(b) of this Declaration and to Section
7(b) of Annex I hereto, the Trustees and Administrators may be appointed or
removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) unless an Event of Default shall have occurred and be
continuing after the issuance of any Securities and, with respect to any
Administrator, at any time after the issuance of any Securities, by vote of the
Holders of a Majority in liquidation amount of
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the Common Securities voting as a class at a meeting of the Holders of the
Common Securities; and
(iii) if an Event of Default shall have occurred and be
continuing after the issuance of the Securities, with respect to the Property
Trustee or the Delaware Trustee, by vote of Holders of a Majority in liquidation
amount of the Capital Securities voting as a class at a meeting of Holders of
the Capital Securities.
(iv) In no event will the Holders of the Capital Securities
have the right to vote to appoint, remove or replace the Administrators, which
voting rights are vested exclusively in the Holders of the Common Securities.
(b) (i) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.6(a) until a Successor Property Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Property Trustee and delivered to the Administrators and the
Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be
removed in accordance with this Section 5.6(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections 5.2 and
5.4 (a "Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Administrators and the Sponsor.
(c) A Trustee or Administrator appointed to office shall hold office
until his successor shall have been appointed or until his death, removal or
resignation. Any Trustee or Administrator may resign from office (without need
for prior or subsequent accounting) by an instrument in writing signed by the
Trustee or the Administrator, as the case may be, and delivered to the Sponsor
and the Trust, which resignation shall take effect upon such delivery or upon
such later date as is specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Property Trustee and delivered to the Trust, the Sponsor and the
resigning Property Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the Holders of the
Securities; and
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(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust, the Sponsor and the
resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor Property
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 5.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.6 within 60 days after delivery of an instrument of resignation or removal,
the Property Trustee or Delaware Trustee resigning or being removed, as
applicable, may petition any court of competent jurisdiction for appointment of
a Successor Property Trustee or Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Property Trustee or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
SECTION 5.7 Vacancies Among Trustees and Administrators.
If a Trustee or Administrator ceases to hold office for any reason
and the number of Trustees or Administrators, as the case may be, is not reduced
pursuant to Section 5.1, or if the number of Trustees or Administrators, as the
case may be, is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Administrators or, if
there are more than two, a majority of the Administrators, shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 5.6.
SECTION 5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee or an Administrator shall not operate to dissolve, terminate or annul
the Trust. Whenever a vacancy in the number of Administrators shall occur, until
such vacancy is filled by the appointment of an Administrator
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in accordance with Section 5.6, the Administrators in office, regardless of
their number, shall have all the powers granted to the Administrators and shall
discharge all the duties imposed upon the Administrators by this Declaration.
SECTION 5.9 Meetings.
If there is more than one Administrator, meetings of the
Administrators shall be held from time to time upon the call of any
Administrator. Regular meetings of the Administrators may be held at a time and
place fixed by resolution of the Administrators. Notice of any in-person
meetings of the Administrators shall be hand delivered or otherwise delivered in
writing (including by facsimile, with a hard copy by overnight courier) not less
than 24 hours before such meeting. Notice of any telephonic meetings of the
Administrators or any committee thereof shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 24 hours before a meeting. Notices shall contain a brief
statement of the time, place and anticipated purposes of the meeting. The
presence (whether in person or by telephone) of an Administrator at a meeting
shall constitute a waiver of notice of such meeting except where an
Administrator attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been lawfully
called or convened. Unless provided otherwise in this Declaration, any action of
the Administrators may be taken at a meeting by vote of a majority of the
Administrators present (whether in person or by telephone) and eligible to vote
with respect to such matter, provided that a Quorum is present, or without a
meeting by the unanimous written consent of the Administrators. In the event
there is only one Administrator, any and all action of such Administrator shall
be evidenced by a written consent of such Administrator.
SECTION 5.10 Delegation of Power.
(a) Any Administrator 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
3.6.
(b) The Trustees and Administrators shall have power to delegate
from time to time to such of their number or to such of the other
Administrators, as the case may be, or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Trustees or Administrators, as the case may be, or
otherwise as the Trustees or Administrators, as the case amy be, may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
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SECTION 5.11 Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee or the Delaware Trustee
or any Administrator that is not a natural person, as the case may be, may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Property
Trustee, the Delaware Trustee or the Administrator, as the case may be, shall be
a party, or any Person succeeding to all or substantially all the corporate
trust business of the Property Trustee, the Delaware Trustee or the
Administrator, as the case may be, shall be the successor of the Property
Trustee, the Delaware Trustee or the Administrator, as the case may be,
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.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions in accordance with the
applicable terms of the relevant Holders' Securities. If and to the extent that
the Debenture Issuer makes a payment of interest (including Compounded Interest
(as defined in the Indenture) and Additional Interest (as defined in the
Indenture)), premium and/or principal on the Debentures held by the Property
Trustee (the amount of any such payment being a "Payment Amount"), the Property
Trustee shall and is directed, to the extent funds are available for that
purpose, to make a distribution (a "Distribution") of the Payment Amount to
Holders in accordance with the respective term of the Securities held by them.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Administrators shall on behalf of the Trust issue one class
of 8.00% Convertible Trust Preferred Securities representing undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I (the "Capital Securities") and one class of 8% Convertible
Trust Common Securities representing undivided beneficial interests in the
assets of the Trust having such terms as are set forth in Annex I (the "Common
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Securities"). The Trust shall issue no securities or other interests in the
assets of the Trust other than the Securities.
(b) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable.
(d) Every Person, by virtue of having become a Holder or a Capital
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
SECTION 7.2 Execution and Authentication.
(a) The Securities shall be signed on behalf of the Trust by an
Administrator. In case any Administrator who shall have signed any of the
Securities shall cease to be such Administrator before the Securities so signed
shall be delivered by the Trust, such Securities nevertheless may be delivered
as though the Person who signed such Securities had not ceased to be such
Administrator; and any Securities may be signed on behalf of the Trust by such
Persons who, at the actual date of execution of such Security, shall be the
Administrators of the Trust, although at the date of the execution and delivery
of the Declaration any such Person was not such an Administrator.
(b) One Administrator shall sign the Capital Securities for the
Trust by manual or facsimile signature. Unless otherwise determined by the
Trust, such signature shall, in the case of Common Securities, be a manual
signature.
(c) A Capital Security shall not be valid until authenticated by the
manual signature of an authorized officer of the Property Trustee. The signature
shall be conclusive evidence that the Capital Security has been authenticated
under this Declaration.
(d) Upon a written order of the Trust signed by one Administrator,
the Property Trustee shall authenticate the Capital Securities for original
issue. The aggregate number of Capital Securities outstanding at any time shall
not exceed the number set forth in the Terms in Annex I hereto except as
provided in Section 7.7.
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(e) The Property Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Capital Securities. An authenticating
agent may authenticate Capital Securities whenever the Property Trustee may do
so. Each reference in this Declaration to authentication by the Property Trustee
includes authentication by such agent. An authenticating agent has the same
rights as the Property Trustee to deal with the Sponsor or an Affiliate.
SECTION 7.3 Form and Dating.
The Capital Securities and the Property Trustee's certificate of
authentication shall be substantially in the form of Exhibit A-1 and the Common
Securities shall be substantially in the form of Exhibit B-1, each of which is
hereby incorporated in and expressly made a part of this Declaration.
Certificates representing the Securities may be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrators, as evidenced by their execution thereof. The Securities may
have letters, CUSIP or other numbers, notations or other marks of identification
or designation and such legends or endorsements required by law, stock exchange
rule, agreements to which the Trust is subject, if any, or usage (provided that
any such notation, legend or endorsement is in a form acceptable to the Trust).
The Trust at the direction of the Sponsor shall furnish any such legend not
contained in Exhibit A-1 to the Property Trustee in writing. Each Capital
Security shall be dated the date of its authentication. The terms and provisions
of the Securities set forth in Annex I and the forms of Securities set forth in
Exhibits A-1 and B-1 are part of the terms of this Declaration and to the extent
applicable, the Property Trustee and the Sponsor, by their execution and
delivery of this Declaration, expressly agree to such terms and provisions and
to be bound thereby.
(a) Global Securities. Unless otherwise specified in the terms of
the Capital Securities, the Capital Securities issued in the Public Offering
shall be issued in the form of one or more, permanent global Securities in
definitive, fully registered form without distribution coupons with the global
legends set forth in Exhibit A-1 hereto (each a "Global Capital Security"),
which shall be deposited on behalf of the purchasers of the Capital Securities
represented thereby with the Property Trustee, at its New York office, as
custodian for the Clearing Agency, and registered in the name of the Clearing
Agency or a nominee of the Clearing Agency, duly executed by the Trust and
authenticated by the Property Trustee as hereinafter provided. The number of
Capital Securities represented by a Global Capital Security may from time to
time be increased or decreased by adjustments made on the records of the
Property Trustee and the Clearing Agency or its nominee as hereinafter provided.
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(b) Book-Entry Provisions. This Section 7.3(b) shall apply only to
the Global Capital Securities and such other Capital Securities in global form
as may be authorized by the Trust to be deposited with or on behalf of the
Clearing Agency.
The Trust shall execute and the Property Trustee shall, in
accordance with Section 7.2, authenticate and make available for delivery
initially one or more Global Capital Securities that (i) shall be registered in
the name of Cede & Co. or other nominee of such Clearing Agency and (ii) shall
be delivered by the Property Trustee to such Clearing Agency or pursuant to such
Clearing Agency's written instructions or held by the Property Trustee as
custodian for the Clearing Agency.
Members of, or participants in, the Clearing Agency ("Participants")
shall have no rights under this Declaration with respect to any Global Capital
Security held on their behalf by the Clearing Agency or by the Property Trustee
as the custodian of the Clearing Agency or under such Global Capital Security,
and the Clearing Agency may be treated by the Trust, the Property Trustee and
any agent of the Trust or the Property Trustee as the absolute owner of such
Global Capital Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Trust, the Property Trustee or any
agent of the Trust or the Property Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Clearing Agency or
impair, as between the Clearing Agency and its Participants, the operation of
customary practices of such Clearing Agency governing the exercise of the rights
of a holder of a beneficial interest in any Global Capital Security.
SECTION 7.4 Definitive Capital Securities.
Except as provided in this Section 7.4, owners of beneficial
interests in a Global Capital Security will not be entitled to receive physical
delivery of certificated Capital Securities ("Definitive Capital Securities").
(a) A Global Capital Security deposited with the Clearing Agency or
with the Property Trustee as custodian for the Clearing Agency pursuant to
Section 7.3 shall be transferred to the beneficial owners thereof in the form of
Definitive Capital Securities only if such transfer complies with Section 9.2
and (i) the Clearing Agency notifies the Sponsor that it is unwilling or unable
to continue as Clearing Agency for such Global Capital Security or if at any
time such Clearing Agency ceases to be a "clearing agency" registered under the
Exchange Act and a clearing agency is not appointed by the Sponsor within 90
days of such notice or within 90 days after the Sponsor becomes aware of such
non-registration, (ii) a Default or an Event of Default has occurred and is
continuing or (iii) the Trust at its sole discretion elects to cause the
issuance of Definitive Capital Securities.
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(b) Any Global Capital Security that is transferable to the
beneficial owners thereof in the form of Definitive Capital Securities pursuant
to this Section 7.4 shall be surrendered by the Clearing Agency to the Property
Trustee located in the Borough of Manhattan, The City of New York, to be so
transferred, in whole or from time to time in part, without charge, and the
Property Trustee shall authenticate and make available for delivery, upon such
transfer of each portion of such Global Capital Security, an equal aggregate
liquidation amount of Securities in the form of Definitive Capital Securities.
Any portion of a Global Capital Security transferred pursuant to this Section
shall be registered in such names as the Clearing Agency shall direct.
(c) Subject to the provisions of Section 7.4(b), the Holder of a
Global Capital Security may grant proxies and otherwise authorize any person,
including Participants and persons that may hold interests through Participants,
to take any action which such Holder is entitled to take under this Declaration
or the Securities.
(d) In the event of the occurrence of any of the events specified in
Section 7.4(a), the Trust will promptly make available to the Property Trustee a
reasonable supply of Definitive Capital Securities in fully registered form
without distribution coupons.
SECTION 7.5 Registrar, Paying Agent and Conversion Agent.
The Trust shall maintain in the Borough of Manhattan, The City of
New York, (i) an office or agency where Capital Securities may be presented for
registration of transfer ("Registrar"), (ii) an office or agency where Capital
Securities may be presented for payment ("Paying Agent") and (iii) an office or
agency where Securities may be presented for conversion ("Conversion Agent").
The Registrar shall keep a register of the Capital Securities and of their
transfer. Subject to Section 3.8(i), the Trust may appoint the Registrar, the
Paying Agent and the Conversion Agent and may appoint one or more co-registrars,
one or more additional paying agents and one or more additional conversion
agents in such other locations as it shall determine. The term "Registrar"
includes any additional registrar, "Paying Agent" includes any additional paying
agent and the term "Conversion Agent" includes any additional conversion agent.
Subject to Section 3.8(i), the Trust may change any Paying Agent, Registrar,
co-registrar or Conversion Agent without prior notice to any Holder. The Paying
Agent shall be permitted to resign as Paying Agent upon 30 days written notice
to the Trustees and the Administrators. The Trust shall notify the Property
Trustee of the name and address of any Agent not a party to this Declaration. If
the Trust fails to appoint or maintain another entity as Registrar, Paying Agent
or Conversion Agent, the Property Trustee shall act as such. The Trust or any of
its Affiliates may act as Paying Agent, Registrar or
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Conversion Agent. The Trust shall act as Paying Agent, Registrar, co-registrar
and Conversion Agent for the Common Securities.
The Trust initially appoints the Property Trustee as Registrar,
Paying Agent and Conversion Agent for the Capital Securities.
SECTION 7.6 Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than the Property
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Property Trustee all money held by the Paying Agent
for the payment of liquidation amounts or Distributions on the Securities, and
will notify the Property Trustee if there are insufficient funds for such
purpose. While any such insufficiency continues, the Property Trustee may
require a Paying Agent to pay all money held by it to the Property Trustee. The
Trust at any time may require a Paying Agent to pay all money held by it to the
Property Trustee and to account for any money disbursed by it. Upon payment over
to the Property Trustee, the Paying Agent (if other than the Trust or an
Affiliate of the Trust) shall have no further liability for the money. If the
Trust or the Sponsor or an Affiliate of the Trust or the Sponsor acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent.
SECTION 7.7 Replacement Securities.
If a Holder claims that a Security owned by it has been lost,
destroyed or wrongfully taken or if such Security is mutilated and is
surrendered to the Trust or in the case of the Capital Securities to the
Property Trustee, the Trust shall issue and the Property Trustee shall
authenticate a replacement Security if the Property Trustee's and the Trust's
requirements, as the case may be, are met. At the request of the Property
Trustee or the Sponsor, an indemnity bond may be required from the Holder which,
in the judgment of the Property Trustee, is sufficient to protect the Trustees,
the Administrators, the Sponsor or any authenticating agent from any loss which
any of them may suffer if a Security is replaced. The Trust may charge such
Holder for its expenses in replacing a Security.
Every replacement Security is an additional beneficial interest in
the Trust.
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SECTION 7.8 Outstanding Capital Securities.
The Capital Securities outstanding at any time are all the Capital
Securities authenticated by the Property Trustee except for those canceled by
it, those delivered to it for cancellation, and those described in this Section
as not outstanding.
If a Capital Security is replaced or purchased pursuant to Section
7.7 hereof, it ceases to be outstanding unless the Property Trustee receives
proof satisfactory to it that the replaced, paid or purchased Capital Security
is held by a bona fide purchaser.
If Capital Securities are considered paid in accordance with the
terms of this Declaration, they cease to be outstanding and Distributions on
them shall cease to accumulate.
A Capital Security does not cease to be outstanding because one of
the Trust, the Sponsor or an Affiliate of the Sponsor holds the Security.
SECTION 7.9 Capital Securities in Treasury.
In determining whether the Holders of the required amount of
Securities have concurred in any direction, waiver or consent, Capital
Securities owned by the Trust, the Sponsor or an Affiliate of the Sponsor, as
the case may be, shall be disregarded and deemed not to be outstanding, except
that for the purposes of determining whether the Property Trustee shall be fully
protected in relying on any such direction, waiver or consent, only Securities
which the Property Trustee actually knows are so owned shall be so disregarded.
SECTION 7.10 Temporary Securities.
Until Definitive Capital Securities are ready for delivery, the
Trust may prepare and, in the case of the Capital Securities, the Property
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Trust considers appropriate for temporary Securities. Without unreasonable
delay, the Trust shall prepare and, in the case of the Capital Securities, the
Property Trustee shall authenticate definitive Securities in exchange for
temporary Securities.
SECTION 7.11 Cancellation.
The Trust at any time may deliver Capital Securities to the Property
Trustee for cancellation. The Registrar, Paying Agent and Conversion Agent shall
forward to the Property Trustee any Capital Securities surrendered to them for
registration of transfer, redemption,
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conversion, exchange or payment. The Property Trustee shall promptly cancel all
Capital Securities, surrendered for registration of transfer, redemption,
conversion, exchange, payment, replacement or cancellation and shall dispose of
canceled Capital Securities as the Trust directs, provided that the Property
Trustee shall not be obligated to destroy Capital Securities. The Trust may not
issue new Capital Securities to replace Capital Securities that it has paid or
that have been delivered to the Property Trustee for cancellation or that any
holder has converted.
SECTION 7.12 CUSIP Numbers.
The Trust in issuing the Capital Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Property Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders of Capital
Securities; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Capital
Securities or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Capital
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Sponsor will promptly notify the Property Trustee
of any change in the CUSIP numbers.
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust.
(a) The Trust shall dissolve:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or
liquidation or its equivalent with respect to the Sponsor; or the revocation of
the Sponsor's charter and the expiration of 90 days after the date of revocation
without a reinstatement thereof;
(iii) upon receipt by the Property Trustee of written notice
from the Holder of the Common Securities directing the Property Trustee to
dissolve the Trust (which direction is optional, and except as otherwise
expressly provided below, within the discretion of the Holder of the Common
Securities) and provided, further, that such direction (and the resulting
distribution of a Like Amount of the Debentures as provided in Annex I hereto)
is conditioned on (x) the receipt by the Sponsor or the Trust, as the case
requires, of any
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required regulatory approval, and (y) the Administrator's receipt of an opinion
of a tax counsel experienced in such matters (a "No Recognition Opinion"), which
opinion may rely on published rulings of the Internal Revenue Service, to the
effect that the Holders will not recognize any gain or loss for United States
federal income tax purposes as a result of the dissolution of the Trust (and the
resulting distribution of Debentures);
(iv) upon the entry of a decree of judicial dissolution of the
Trust by a court of competent jurisdiction;
(v) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have been paid
to the Holders in accordance with the terms of the Securities;
(vi) upon the repayment of the Debentures or at such time as
no Debentures are outstanding; or
(vii) the expiration of the term of the Trust provided in
Section 3.13.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and after satisfaction of liabilities to
creditors, and subject to the terms set forth in Annex I hereto, the
Administrators (each of whom is hereby authorized to take such action) shall
file a certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, only in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. To the fullest extent permitted by law, any
transfer or purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
(b) The Sponsor may not transfer the Common Securities, except to
the extent pursuant to a transaction not prohibited by Article X of the
Indenture.
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(c) The Administrators shall provide for the registration of
Securities and of the transfer of Securities, which will be effected without
charge but only upon payment (with such indemnity as the Administrators may
require) in respect of any tax or other governmental charges that may be imposed
in relation to it. Upon surrender for registration of transfer of any
Securities, the Administrators shall cause one or more new Securities to be
issued in the name of the designated transferee or transferees. Every Security
surrendered for registration of transfer shall be accompanied by a written
instrument of transfer in form satisfactory to the Administrators and the
Registrar duly executed by the Holder or such Holder's attorney duly authorized
in writing. Each Security surrendered for registration of transfer shall be
canceled by the Property Trustee in accordance with Section 7.11. A transferee
of a Security shall be entitled to the rights and subject to the obligations of
a Holder hereunder upon the receipt by such transferee of a Security. By
acceptance of a Security, each transferee shall be deemed to have agreed to be
bound by this Declaration.
SECTION 9.2 Transfer Procedures and Restrictions.
(a) Transfer and Exchange of Definitive Capital Securities.
When Definitive Capital Securities are presented to the Registrar or
co-Registrar
(x) to register the transfer of such Definitive Capital
Securities; or
(y) to exchange such Definitive Capital Securities for an
equal number of Definitive Capital Securities,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Capital Securities surrendered for
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Administrators and
the Registrar or co-registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing; and
(b) Restrictions on Transfer of a Definitive Capital Security for a
Beneficial Interest in a Global Capital Security. A Definitive Capital Security
may not be exchanged for a beneficial interest in a Global Capital Security
except upon satisfaction of the requirements set forth below. Upon receipt by
the Property Trustee of a Definitive Capital Security, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the
Registrar and the Administrators, together with written instructions directing
the Property Trustee to make, or to direct the Clearing Agency to make, an
adjustment on its books and records with respect to the appropriate Global
Capital Security to reflect an increase in the
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number of the Capital Securities represented by such Global Capital Security,
then the Property Trustee shall cancel such Definitive Capital Security and
cause, or direct the Clearing Agency to cause, the aggregate number of Capital
Securities represented by the appropriate Global Capital Security to be
increased accordingly. If no Global Capital Securities are then outstanding, the
Trust shall issue and the Property Trustee shall authenticate, upon written
order of any Administrator, an appropriate number of Capital Securities in
global form.
(c) Transfer and Exchange of Global Capital Securities. Subject to
Section 9.02(f), the transfer and exchange of Global Capital Securities or
beneficial interests therein shall be effected through the Clearing Agency, in
accordance with this Declaration (including applicable restrictions on transfer
set forth herein, if any) and the procedures of the Clearing Agency therefor.
(d) Transfer of a Beneficial Interest in a Global Capital
Security for a Definitive Capital Security.
(i) Subject to Section 7.4, any Person having a beneficial
interest in a Global Capital Security may upon request, but only upon 20 days
prior notice to the Property Trustee, and if accompanied by the information
specified below, exchange such beneficial interest for a Definitive Capital
Security representing the same number of Capital Securities. Upon receipt by the
Property Trustee from the Clearing Agency or its nominee on behalf of any Person
having a beneficial interest in a Global Capital Security of written
instructions or such other form of instructions as is customary for the Clearing
Agency or the Person designated by the Clearing Agency as having such a
beneficial interest in a Global Capital Security and a certification from the
transferor (in a form substantially similar to that attached hereto as the "Form
of Assignment" in Exhibit A-1), which may be submitted by facsimile, then the
Property Trustee will cause the aggregate number of Capital Securities
represented by Global Capital Securities to be reduced on its books and records
and, following such reduction, the Trust will execute and the Property Trustee
will authenticate and make available for delivery to the transferee a Definitive
Capital Security.
(ii) Definitive Capital Securities issued in exchange for a
beneficial interest in a Global Capital Security pursuant to this Section 9.2(d)
shall be registered in such names and in such denominations as the Clearing
Agency, pursuant to instructions from its Participants or indirect participants
or otherwise, shall instruct the Property Trustee in writing. The Property
Trustee shall deliver such Capital Securities to the Persons in whose names such
Capital Securities are so registered in accordance with such instructions of the
Clearing Agency.
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(e) Restrictions on Transfer and Exchange of Global Capital
Securities. Notwithstanding any other provisions of this Declaration (other than
the provisions set forth in subsection (f) of this Section 9.2), a Global
Capital Security may not be transferred as a whole except by the Clearing Agency
to a nominee of the Clearing Agency or another nominee of the Clearing Agency or
by the Clearing Agency or any such nominee to a successor Clearing Agency or a
nominee of such successor Clearing Agency.
(f) Authentication of Definitive Capital Securities. If at any
time:
(i) the Clearing Agency notifies the Sponsor that it is
unwilling or unable to continue as Clearing Agency for such Global Capital
Security or if at any time such Clearing Agency ceases to be a "clearing agency"
registered under the Exchange Act and a clearing agency is not appointed by the
Sponsor within 90 days of such notice or within 90 days after the Sponsor
becomes aware of such non-registration,
(ii) there occurs a Default or an Event of Default which is
continuing, or
(iii) the Trust, in its sole discretion, notifies the Property
Trustee in writing that it elects to cause the issuance of Definitive Capital
Securities under this Declaration,
then the Trust will execute, and the Property Trustee, upon receipt of a written
order of the Trust signed by one Administrator requesting the authentication and
delivery of Definitive Capital Securities to the Persons designated by the
Trust, will authenticate and make available for delivery Definitive Capital
Securities, equal in number to the number of Capital Securities represented by
the Global Capital Securities, in exchange for such Global Capital Securities.
(g) Cancellation or Adjustment of Global Capital Security. At such
time as all beneficial interests in a Global Capital Security have either been
exchanged for Definitive Capital Securities to the extent permitted by this
Declaration or redeemed, converted, repurchased or canceled in accordance with
the terms of this Declaration, such Global Capital Security shall be returned to
the Clearing Agency for cancellation or retained and canceled by the Property
Trustee. At any time prior to such cancellation, if any beneficial interest in a
Global Capital Security is exchanged for Definitive Capital Securities, Capital
Securities represented by such Global Capital Security shall be reduced and an
adjustment shall be made on the books and records of the Property Trustee (if it
is then the custodian for such Global Capital Security) with respect to such
Global Capital Security, by the Property Trustee to reflect such reduction.
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(h) Obligations with Respect to Transfers and Exchanges of Capital
Securities.
(i) To permit registrations of transfers and exchanges, the
Trust shall execute and the Property Trustee shall authenticate Definitive
Capital Securities and Global Capital Securities at the Registrar's or
co-Registrar's request in accordance with the terms of this Declaration.
(ii) Registrations of transfers or exchanges will be effected
without charge, but only upon payment (with such indemnity as the Trust or the
Sponsor may require) in respect of any tax or other governmental charge that may
be imposed in relation to it.
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of (a) Capital Securities during a period
beginning at the opening of business 15 days before the day of mailing of a
notice of redemption or any notice of selection of Capital Securities for
redemption and ending at the close of business on the day of such mailing; or
(b) any Capital Security so selected for redemption in whole or in part, except
the unredeemed portion of any Capital Security being redeemed in part.
(iv) Prior to the due presentation for registrations of
transfer of any Capital Security, the Trust, the Property Trustee, the Paying
Agent, the Registrar or any co-registrar may deem and treat the person in whose
name a Capital Security is registered as the owner of such Capital Security for
the purpose of receiving Distributions on such Capital Security (subject to
Section 2(c) of Annex I hereto) and for all other purposes whatsoever, and none
of the Trust, the Property Trustee, the Paying Agent, the Registrar or any
co-registrar shall be affected by notice to the contrary.
(v) All Capital Securities issued upon any transfer or
exchange pursuant to the terms of this Declaration shall evidence the same
security and shall be entitled to the same benefits under this Declaration as
the Capital Securities surrendered upon such transfer or exchange.
(i) No Obligation of the Property Trustee and Registrar.
(i) The Property Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Capital Security, a Participant
in the Clearing Agency or other Person with respect to the accuracy of the
records of the Clearing Agency or its nominee or of any Participant thereof,
with respect to any ownership interest in the Capital Securities or with respect
to the delivery to any Participant, beneficial owner or other Person (other than
the
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Clearing Agency) of any notice (including any notice of redemption) or the
payment of any amount, under or with respect to such Capital Securities. All
notices and communications to be given to the Holders and all payments to be
made to Holders under the Capital Securities shall be given or made only to or
upon the order of the registered Holders (which shall be the Clearing Agency or
its nominee in the case of a Global Capital Security). The rights of beneficial
owners in any Global Capital Security shall be exercised only through the
Clearing Agency subject to the applicable rules and procedures of the Clearing
Agency. The Property Trustee may conclusively rely and shall be fully protected
in relying upon information furnished by the Clearing Agency or any agent
thereof with respect to its Participants and any beneficial owners.
(ii) The Property Trustee and Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Declaration or under applicable law
with respect to any transfer of any interest in any Capital Security (including
any transfers between or among Clearing Agency Participants or beneficial owners
in any Global Capital Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by,
and to do so if and when expressly required by, the terms of this Declaration,
and to examine the same to determine substantial compliance as to form with the
express requirements hereof.
SECTION 9.3 Book Entry Interests.
Global Capital Securities shall initially be registered on the books
and records of the Trust in the name of Cede & Co., the nominee of the Clearing
Agency, and no Capital Security Beneficial Owner will receive a Definitive
Capital Security representing such Capital Security Beneficial Owner's interests
in such Global Capital Securities, except as provided in Sections 7.4 and 9.2.
Unless and until fully registered Definitive Capital Securities certificates
have been issued to the Capital Security Beneficial Owners pursuant to Sections
7.4 and 9.2:
(a) the provisions of this Section 9.3 shall be in full force and
effect;
(b) the Trust, the Trustees and the Administrators shall be entitled
to deal with the Clearing Agency for all purposes of this Declaration (including
the payment of Distributions on the Global Capital Securities and receiving
approvals, votes or consents hereunder) as the Holder of the Capital Securities
and the sole holder of the Global Certificates and shall have no obligation to
the Capital Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.3 conflict
with any other provisions of this Declaration, the provisions of this Section
9.3 shall control; and
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(d) the rights of the Capital Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Capital Security Beneficial
Owners and the Clearing Agency and/or the Clearing Agency Participants and the
Clearing Agency will receive all Distributions pursuant to the terms of this
Declaration and payments of Distributions on the Global Certificates to such
Clearing Agency Participants will be made by the Clearing Agency in accordance
with its established procedures. DTC will make book entry transfers among the
Clearing Agency Participants.
SECTION 9.4 Notices to Clearing Agency.
Whenever a notice or other communication to the Capital Security
Holders is required under this Declaration, the Trustees and the Administrators
shall give all such notices and communications specified herein to be given to
the Holders of Global Capital Securities to the Clearing Agency, and shall have
no notice obligations to the Capital Security Beneficial Owners.
SECTION 9.5 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Capital Securities, the Administrators
may, in their sole discretion, appoint a successor Clearing Agency with respect
to such Capital Securities.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Declaration, the
Securities Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the Securities
which shall be made solely from assets of the Trust; and
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(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) Pursuant to ss. 3803(a) of the Business Trust Act, the Holders
of the Common Securities 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; provided, however,
that the Sponsor shall be liable for all of the debts and obligations of the
Trust (other than with respect to the Securities) to the extent not satisfied
out of the Trust's assets.
(c) Pursuant to ss. 3803(a) of the Business Trust Act, the Holders
of the Capital Securities 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.
SECTION 10.2 Exculpation.
(a) Except as otherwise specifically provided in this Declaration,
no Indemnified Person shall be liable, responsible or accountable in damages or
otherwise to the Trust or any Covered Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and, if selected by such Indemnified Person,
has been selected by such Indemnified Person with reasonable care 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 Securities might properly be paid.
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SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
any Covered Person and any Indemnified Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person shall act in
a manner that is, or provides terms that are, fair and reasonable to the Trust
or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and factors
as it desires, including its own interests, and shall have no duty or obligation
to give any consideration to any interest of or factors affecting the Trust or
any other Person; or
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(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or by
applicable law.
SECTION 10.4 Indemnification.
(a) (i) The Sponsor shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Trust) by reason of the fact that he is or was a
Company Indemnified Person against expenses (including attorney's fees and
expenses), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the Company Indemnified Person
did not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(ii) The Sponsor shall indemnify, to the full extent permitted
by law, any Company Indemnified Person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Trust to procure a judgment in its favor by reason of the fact
that he is or was a Company Indemnified Person against expenses (including
attorney's fees and expenses) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust and except that no such indemnification shall be
made in respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to the Trust unless and
only to the extent that the Court of Chancery of Delaware or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which such Court of Chancery or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action without
prejudice or the
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settlement of an action without admission of liability) in defense of any
action, suit or proceeding referred to in paragraphs (i) and (ii) of this
Section 10.4(a), or in defense of any claim, issue or matter therein, he shall
be indemnified, to the full extent permitted by law, against expenses (including
attorney's fees) actually and reasonably incurred by him in connection
therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 10.4(a) (unless ordered by a court) shall be made by the Sponsor only as
authorized in the specific case upon a determination that indemnification of the
Company Indemnified Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (i) and (ii). Such
determination shall be made (1) by the Administrators by a majority vote of a
quorum consisting of such Administrators who were not parties to such action,
suit or proceeding, (2) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Administrators so directs, by
independent legal counsel in a written opinion, or (3) by the Common Security
Holder of the Trust.
(v) Expenses (including attorney's fees and expenses) incurred
by a Company Indemnified Person in defending a civil, criminal, administrative
or investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 10.4(a) shall be paid by the Sponsor in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Company Indemnified Person to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Sponsor as authorized in this Section 10.4(a).
Notwithstanding the foregoing, no advance shall be made by the Sponsor if a
determination is reasonably and promptly made (i) by the Administrators by a
majority vote of a quorum of disinterested Administrators, (ii) if such a quorum
is not obtainable, or, even if obtainable, if a quorum of disinterested
Administrators so directs, by independent legal counsel in a written opinion or
(iii) the Common Security Holder of the Trust, that, based upon the facts known
to the Administrators, counsel or the Common Security Holder at the time such
determination is made, such Company Indemnified Person acted in bad faith or in
a manner that such person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal proceeding, that such
Company Indemnified Person believed or had reasonable cause to believe his
conduct was unlawful. In no event shall any advance be made in instances where
the Administrators, independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached his duty to the
Trust or its Common or Capital Security Holders.
(vi) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section 10.4(a) shall
not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may
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be entitled under any agreement, vote of stockholders or disinterested directors
of the Sponsor or Capital Security Holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section 10.4(a)
shall be deemed to be provided by a contract between the Sponsor and each
Company Indemnified Person who serves in such capacity at any time while this
Section 10.4(a) is in effect. Any repeal or modification of this Section 10.4(a)
shall not affect any rights or obligations then existing.
(vii) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified Person
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Sponsor would
have the power to indemnify him against such liability under the provisions of
this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to
"the Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was serving at the
request of such constituent entity as a director, trustee, officer, employee or
agent of another entity, shall stand in the same position under the provisions
of this Section 10.4(a) with respect to the resulting or surviving entity as he
would have with respect to such constituent entity if its separate existence had
continued.
(ix) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 10.4(a), unless otherwise provided when
authorized or ratified, shall continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(b) To the fullest extent permitted by law, the Sponsor agrees to
indemnify the (i) Property Trustee, (ii) the Delaware Trustee, (iii) any
Affiliate of the Property Trustee and the Delaware Trustee, and (iv) any
officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Property Trustee and the
Delaware Trustee (each of the Persons in (i) through (iv) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified
Person harmless against, any and all loss, liability, damage, claim or expense
including taxes (other than taxes based on the income of such Fiduciary
Indemnified Person) incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or investigating
any claim or liability in connection with the exercise or
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performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 10.4(b) shall survive the dissolution of
the Trust and the termination and discharge of this Declaration.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee (subject to Section 5.3(c)), 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 the
Trust and the Holders shall have no rights by virtue of this Declaration 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. No Covered Person, the Sponsor, the
Delaware Trustee or the Property 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 any Covered Person, the Sponsor, the Delaware Trustee and the Property
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 Covered Person, the Delaware Trustee and the Property
Trustee may engage or be interested in any financial or other transaction with
the Sponsor or any Affiliate of the Sponsor, or may act as depositary for,
trustee or agent for, or act on any committee or body of holders of, securities
or other obligations of the Sponsor or its Affiliates.
SECTION 10.6 Compensation; Fees
The Sponsor agrees:
(a) to pay to the Trustees and the Administrators from time to time
such compensation for all services rendered by them hereunder as the parties
shall agree from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust); and
(b) except as otherwise expressly provided herein, to reimburse the
Trustees and the Administrators upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees or the
Administrators in accordance with any provision of this Declaration (including
the reasonable compensation and the expenses and disbursements of their
respective agents and counsel), except any such expense, disbursement or advance
as may be attributable to their respective negligence or bad faith.
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The provisions of this Section 10.6 shall survive the dissolution of
the Trust and the termination of this Declaration and the removal or resignation
of any Trustee or Administrator.
No Trustee may claim any lien or charge on any property of the Trust
as a result of any amount due pursuant to this Section 10.6.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall end on September
30 of each year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Administrators shall keep, or cause to be kept, full books of account, records
and supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States federal income tax purposes. The books of account
and the records of the Trust shall be examined by and reported upon as of the
end of each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Administrators.
(b) The Administrators shall cause to be prepared and delivered to
each of the Holders, within 90 days after the end of each Fiscal Year of the
Trust, annual financial statements of the Trust, including a balance sheet of
the Trust as of the end of such Fiscal Year, and the related statements of
income or loss;
(c) The Administrators shall cause to be duly prepared and delivered
to each of the Holders, any annual United States federal income tax information
statement required by the Code, containing such information with regard to the
Securities held by each Holder as is required by the Code and the Treasury
Regulations. Notwithstanding any right under the Code to deliver any such
statement at a later date, the Administrators shall endeavor to deliver all such
information statements within 30 days after the end of each Fiscal Year of the
Trust.
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(d) The Administrators shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Administrators on behalf of the Trust with any state or local taxing
authority.
SECTION 11.3 Banking. The Trust shall maintain one or more bank
accounts in the name and for the sole benefit of the Trust; provided, however,
that all payments of funds in respect of the Debentures held by the Property
Trustee shall be made directly to the Property Trustee Account and no other
funds of the Trust shall be deposited in the Property Trustee Account. The sole
signatories for such accounts shall be designated by the Administrators;
provided, however, that the Property Trustee shall designate the signatories for
the Property Trustee Account.
SECTION 11.4 Withholding. The Trust and the Administrators shall
comply with all withholding requirements under United States federal, state and
local law. The Trust shall request, and the Holders shall provide to the Trust,
such forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Administrators
shall file required forms with applicable jurisdictions and, unless an exemption
from withholding is properly established by a Holder, shall remit amounts
withheld with respect to the Holder to applicable jurisdictions. To the extent
that the Trust is required to withhold and pay over any amounts to any authority
with respect to Distributions or allocations to any Holder, the amount withheld
shall be deemed to be a Distribution in the amount of the withholding to the
Holder. In the event of any claimed over withholding, Holders shall be limited
to an action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by:
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(i) the Administrators (or if there are more than two
Administrators a majority of the Administrators);
(ii) the Property Trustee;
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware Trustee; and
(iv) the Sponsor.
(b) No amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless, the Property Trustee shall have first received an
Officer's Certificate from each of the Trust and the Sponsor that such amendment
is permitted by, and conforms to, the terms of this Declaration (including the
terms of the Securities); and
(ii) unless the Property Trustee shall have received an
Opinion of Counsel (who may be counsel to the Sponsor or the Trust) that such
amendment is permitted by, and conforms to, the terms of this Declaration
(including the terms of the Securities),
provided, however, that the Property Trustee and the Delaware Trustee (to the
extent the Delaware Trustee is required to sign such amendment) shall not be
required to sign any such amendment which affects the rights, powers, duties,
obligations or immunities of the Property Trustee or the Delaware Trustee, as
the case may be, under the Declaration or otherwise; and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified
for purposes of United States federal income taxation as a grantor trust;
(B) reduce or otherwise adversely affect the powers of
the Property Trustee in contravention of the Trust Indenture Act;
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company Act; or
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(D) result in the Holders recognizing gain or loss for
federal income tax purposes.
(c) At such time after the Trust has issued any Securities that
remain outstanding, any amendment that would adversely affect, in any material
respect, the rights, privileges or preferences of any Holder of Securities may
be effected only with such additional requirements as may be set forth in the
terms of such Securities;
(d) Sections 9.1(b), 9.1(c) and this Section 12.1 shall not be
amended without the consent of all of the Holders of the Securities;
(e) Article Four shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities;
(f) The rights of the holders of the Common Securities under Article
Five to increase or decrease the number of, and appoint and remove Trustees and
Administrators shall not be amended without the consent of the Holders of a
Majority in liquidation amount of the Common Securities; and
(g) Notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity, correct or supplement any provision in
this Declaration that may be inconsistent with any other provision of this
Declaration or to make any other provisions with respect to matters or questions
arising under this Declaration which shall not be inconsistent with the other
provisions of the Declaration; or
(ii) 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 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 interest of the Holders of the
Securities.
(h) This Declaration may be amended by the Trustees, the
Administrators and the Sponsor if:
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(i) the Holders of a Majority in liquidation amount of the
Securities consent to such amendment; and
(ii) the Trustees and Administrators have received an opinion
of nationally recognized independent counsel experienced in such matters to the
effect that such amendment or the exercise of any power granted to the Trustees
or Administrators 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.
provided, that without the consent of each Holder of Securities, this
Declaration may not be amended to:
(x) change the amount or timing of any Distribution on the
Securities or otherwise adversely affect the amount of any Distribution required
to be made in respect of the Securities as of a specified date; or
(y) restrict the right of a Holder of Securities to institute
suit for the enforcement of any such payment on or after such date.
SECTION 12.2 Meetings of the Holders; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be called
at any time by the Administrators (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Capital
Securities are listed or admitted for trading. The Administrators shall call a
meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in liquidation amount of such class of Securities. Such direction
shall be given by delivering to the Administrators one or more notices in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders calling a meeting shall specify in writing the Securities
held by the Holders exercising the right to call a meeting and only those
Securities specified shall be counted for purposes of determining whether the
required percentage set forth in the second sentence of this paragraph has been
met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
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(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least seven days and not
more than 60 days before the date of such meeting. Whenever a vote, consent or
approval of the Holders is permitted or required under this Declaration or the
rules of any stock exchange on which the Capital Securities are listed or
admitted for trading, such vote, consent or approval may be given at a meeting
of the Holders. Any action that may be taken at a meeting of the Holders of
Securities may be taken without a meeting if a consent in writing setting forth
the action so taken is signed by the Holders of Securities owning not less than
the minimum amount of Securities in liquidation amount that would be necessary
to authorize or take such action at a meeting at which all Holders having a
right to vote thereon were present and voting. Prompt notice of the taking of
action without a meeting shall be given to the Holders entitled to vote who have
not consented in writing. The Administrators may specify that any written ballot
submitted to the Security Holder for the purpose of taking any action without a
meeting shall be returned to the Trust within the time specified by the
Administrators;
(ii) each Holder may authorize any Person to act for it by
proxy on all matters in which a Holder is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting. No proxy
shall be valid after the expiration of 11 months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the Holder of Securities executing it. Except as otherwise provided herein,
all matters relating to the giving, voting or validity of proxies shall be
governed by the General Corporation Law of the State of Delaware relating to
proxies, and judicial interpretations thereunder, as if the Trust were a
Delaware corporation and the Holders were stockholders of a Delaware
corporation;
(iii) each meeting of the Holders shall be conducted by the
Administrators or by such other Person that the Administrators may designate;
and
(iv) unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the listing rules of any
stock exchange on which the Capital Securities are then listed or trading
otherwise provides, the Administrators, in their sole discretion, shall
establish all other provisions relating to meetings of Holders, including notice
of the time, place or purpose of any meeting at which any matter is to be voted
on by any Holders of Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum requirements,
voting in person or by proxy or any other matter with respect to the exercise of
any such right to vote.
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ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee (with appropriate changes to clause (a) below)
that:
(a) The Property Trustee is a New York banking corporation with
trust powers 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 this Declaration has been duly authorized by all necessary corporate action
on the part of the Property Trustee. This Declaration has been duly executed and
delivered by the Property Trustee and constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(c) The execution, delivery and performance of this Declaration by
the Property Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Property Trustee; and
(d) 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 this
Declaration.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
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(a) The Delaware Trustee is a Delaware banking corporation 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, this Declaration;
(b) The execution, delivery and performance by the Delaware Trustee
of this Declaration has been duly authorized by all necessary corporate action
on the part of the Delaware Trustee. This 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' 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) No consent, approval or authorization of, or registration with
or notice to, any federal banking authority is required for the execution,
delivery or performance by the Delaware Trustee of this Declaration; and
(d) The Delaware Trustee is 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.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Administrators at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Holders and the Property Trustee):
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New York Bancorp Capital Trust
c/o New York Bancorp Inc.
241-02 Northern Boulevard
Douglaston, New York 11362
Attention: Chief Executive Officer
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as Delaware Trustee may give notice of to the
Holders):
The Bank of New York (Delaware)
White Clay Center, Rte 273
Newark, Delaware 19711
Facsimile: (212) 815-5915
Attention: Corporate Trust Administration
(c) if given to the Property Trustee, at the Property Trustee's
mailing address set forth below (or such other address as the Property Trustee
may give notice of to the Holders):
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Administration
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice to the Trust and the Property Trustee):
New York Bancorp Inc.
241-02 Northern Boulevard
Douglaston, New York 11362
Attention: Chief Executive Officer
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed
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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 14.2 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws of the State of Delaware or any other
jurisdiction that would call for the application of the law of any jurisdiction
other than the State of Delaware; provided, however, that there shall not be
applicable to the parties hereunder or this Declaration any provision of the
laws (statutory or common) of the State of Delaware (other than the Business
Trust Act) pertaining to trusts that relate to or regulate, in a manner
inconsistent with the terms hereof (A) the filing with any court or governmental
body or agency of Trustee accounts or schedules of Trustee fees and charges, (B)
affirmative requirements to post bonds for Trustees, officers, agents or
employees of a trust, (C) the necessity for obtaining court or other
governmental approval concerning the acquisition, holding or disposition of real
or personal property, (D) fees or other sums payable to Trustees, officers,
agents or employees of a trust, (E) the allocation of receipts and expenditures
to income or principal, (F) restrictions or limitations on the permissible
nature, amount or concentration of trust investments or requirements relating to
the titling, storage or other manner of holding or investing Trust assets or (G)
the establishment of fiduciary or other standards of responsibility or
limitations on the acts or powers of trustees that are inconsistent with the
limitations or liabilities or authorities and powers of the Trustees hereunder
as set forth or referenced in this Declaration. Section 3540 of Title 12 of the
Delaware Code shall not apply to the Trust.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted to further this intention of
the parties. The parties hereto agree, and any Holder by the purchase of a Trust
Security shall be deemed to have agreed, to treat in all tax and accounting
filings and reports (i) the Trust as a grantor trust and (ii) the Debentures as
indebtedness.
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SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for convenience
of reference only and do not affect the interpretation of this Declaration or
any provision hereof.
SECTION 14.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor,
the Trustees and the Administrators shall bind and inure to the benefit of their
respective successors and assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to Persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of the Sponsor, each of the Trustees and each of the Administrators to
one of such counterpart signature pages. All of such counterpart signature pages
shall be read as though one, and they shall have the same force and effect as
though all of the signers had signed a single signature page.
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IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
--------------------------------------------------------
Stan I. Cohen, in his capacity as Administrator
--------------------------------------------------------
David Fry, in his capacity as Administrator
The Bank of New York (Delaware),
as Delaware Trustee
By:
----------------------------------------------------
--------------------
Authorized Signatory
The Bank of New York,
as Property Trustee
By:
----------------------------------------------------
--------------------
--------------------
NEW YORK BANCORP INC.
as Sponsor
By:
----------------------------------------------------
Michael A. McManus, Jr.
President and Chief Executive Officer
- -------------------------------------------
Stan I. Cohen, solely to acknowledge the
restatement and amendment of the Original
Declaration and his removal from his
position as Initial Trustee pursuant to
Section 5.1(c).
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ANNEX I
TERMS OF
8.00% CONVERTIBLE TRUST PREFERRED SECURITIES
8.00% CONVERTIBLE TRUST COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of ________________, 1997 (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Securities are set out below (each
capitalized term used but not defined herein has the meaning set forth in the
Declaration or, if not defined in such Declaration, as defined in the
Prospectus):
1. Designation and Number.
(a) Capital Securities. 2,000,000 8.00% Convertible Trust
Preferred Securities of the Trust, with an aggregate liquidation amount with
respect to the assets of the Trust of Fifty Million dollars ($50,000,000), and
each with a liquidation amount with respect to the assets of the Trust of $25
per Security, are hereby designated for the purposes of identification only as
"8.00% Convertible Trust Preferred Securities" (the "Capital Securities"). The
certificates evidencing the Capital Securities shall be substantially in the
form of Exhibit A-1 to the Declaration, with such changes and additions thereto
or deletions therefrom as may be required by ordinary usage, custom or practice
or to conform to the rules of any stock exchange on which the Capital Securities
are listed.
(b) Common Securities. 60,000 8.00% Convertible Trust Common
Securities of the Trust with an aggregate liquidation amount with respect to the
assets of the Trust of One Million Five Hundred Thousand dollars ($1,500,000)
and a liquidation amount with respect to the assets of the Trust of $25 per
Security, are hereby designated for the purposes of identification only as
"Common Securities" (the "Common Securities"). The certificates evidencing the
Common Securities shall be substantially in the form of Exhibit B-1 to the
Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice.
2. Distributions.
(a) Distributions payable on each Security will be fixed at a rate
per annum of 8.00% (the "Coupon Rate") of the liquidation amount of $25 per
Security (the "Liquidation Amount"), such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one quarterly period will bear
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additional distributions thereon compounded quarterly at the Coupon Rate (to the
extent permitted by applicable law). The term "Distributions", as used herein,
includes distributions of any such interest, including any Additional Interest
and Compounded Interest (each as defined in the Indenture) unless otherwise
stated. A Distribution is payable only to the extent that payments are made in
respect of the Debentures held by the Property Trustee and to the extent the
Property Trustee has funds on hand legally available therefor.
(b) Distributions on the Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or
duly provided for or, if no Distributions have been paid or duly provided for,
from __________, 1997, and will be payable quarterly in arrears on January 31,
April 30, July 31 and October 31 of each year, commencing on January 31, 1998
(each, a "Distribution Date"), except as otherwise described below.
Distributions will be computed on the basis of a 360-day year consisting of
twelve 30- day months and for any period less than a full calendar month on the
basis of the actual number of days elapsed in such month. As long as no Event of
Default has occurred and is continuing under the Indenture, the Debenture Issuer
has the right under the Indenture to defer payments of interest by extending the
interest payment period at any time and from time to time on the Debentures for
a period not exceeding 20 consecutive quarters, including the first such quarter
during such period (each an "Extension Period"), during which Extension Period
no interest shall be due and payable on the Debentures, provided that no
Extension Period shall end on a day other than an interest payment date for the
Debentures or shall extend beyond the Maturity Date of the Debentures. As a
consequence of such deferral, Distributions will also be deferred. Despite such
deferral, Distributions will continue to accumulate with additional
Distributions thereon (to the extent permitted by applicable law but not at a
rate greater than the rate at which interest is then accruing on the Debentures)
at the Coupon Rate compounded quarterly during any such Extension Period. Prior
to the termination of any such Extension Period, the Debenture Issuer may
further defer payments of interest by further extending such Extension Period;
provided that such Extension Period, together with all such previous and further
extensions within such Extension Period, may not exceed 20 consecutive quarters,
including the first quarter during such Extension Period, or extend beyond the
Maturity Date of the Debentures. Upon the termination of any Extension Period
and the payment of all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements.
(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the fifteenth
day of the month in which the relevant Distribution Date occurs, which
Distribution Dates correspond to the interest payment dates on the Debentures.
Subject to any applicable laws and regulations and the provisions of the
Declaration, each such payment in respect of the Capital Securities will be made
as follows: (i) if the Capital Securities are held in global form by a
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Clearing Agency (or its nominee), in accordance with the procedures of the
Clearing Agency, and (ii) if the Capital Securities are held in definitive form,
by check mailed to the address of the holder thereof entitled thereto as
reflected in the records of the Registrar, unless otherwise agreed by the Trust.
The relevant record dates for the Common Securities shall be the same as the
record dates for the Capital Securities. Distributions payable on any Securities
that are not punctually paid on any Distribution Date, as a result of the
Debenture Issuer having failed to make a payment under the Debentures, will
cease to be payable to the Holder on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with the Indenture. If any date on which Distributions
are payable on the Securities is not a Business Day, then payment of the
Distribution payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any
such delay), except that if such next succeeding Business Day falls in the next
succeeding calendar year, such payment shall be made on the immediately-
preceding Business Day, with the same force and effect as if made on such date.
(d) In the event of an election by a Holder to exchange its
Securities through the Conversion Agent for Debentures and convert such
Debentures into Common Stock pursuant to the terms of the Securities as set
forth in this Annex I to the Declaration, accrued Distributions will not be paid
on Securities that are converted, nor will any payment, allowance or adjustment
be made for accumulated and unpaid Distributions on such Securities, whether or
not in arrears, on converted Securities except under the limited circumstances
described in paragraph 5(b) and except that if any Security is converted on or
after a record date for payment of Distributions thereon, the Holder of
Securities at the close of business on any record date for the payment of
Distributions will be entitled to receive the Distribution payable on such
Securities on the corresponding payment date notwithstanding the conversion of
such Securities into Common Stock following such record date.
(e) In the event that there is any money or other property held by
or for the Trust on a Distribution Date that is not accounted for hereunder,
such property shall be distributed Pro Rata (as defined herein) among the
Holders of the Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any dissolution of the Trust or the Holders of the
Common Securities otherwise give notice of their election to dissolve the Trust
pursuant to and in compliance with the provisions of Section 8.1(a)(iii) of the
Declaration, the Trust shall be liquidated by the Administrators as
expeditiously as practicable by distributing, after paying or making reasonable
provision to pay all claims and obligations of the Trust in accordance with
Section 3808(e) of the Business Trust Act, to the Holders a Like Amount (as
defined below) of
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the Debentures, unless such distribution is determined by the Property Trustee
not to be practicable, in which event such Holders will be entitled to receive
out of the assets of the Trust legally available for distribution to Holders,
after paying or making reasonable provision to pay all claims and obligations of
the Trust in accordance with Section 3808(e) of the Business Trust Act, an
amount equal to the aggregate of the liquidation amount of $25 per Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution").
"Like Amount" means (i) with respect to a redemption of the
Securities, Securities having a Liquidation Amount equal to the principal amount
of Debentures to be paid in accordance with their terms and (ii) with respect to
a distribution of Debentures upon the liquidation of the Trust, Debentures
having a principal amount equal to the Liquidation Amount of the Securities of
the Holder to whom such Debentures are distributed.
If, upon any such liquidation, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets on hand legally
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.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures in whole or in part,
at maturity or upon prepayment (either at the option of the Debenture Issuer or
pursuant to a Special Event, as described below), the proceeds from such
repayment shall be simultaneously applied by the Property Trustee (subject to
the Property Trustee having received notice no later than 45 days prior to such
repayment) to redeem a Like Amount of the Securities at a redemption price equal
to (i) in the case of the repayment of the Debentures at maturity, the Maturity
Redemption Price (as defined below), (ii) in the case of the optional prepayment
of the Debentures upon the occurrence and continuation of a Special Event, the
Special Event Redemption Price (as defined below) and (iii) in the case of the
optional prepayment of the Debentures other than as a result of the occurrence
and continuance of a Special Event, the Optional Redemption Price (as defined
below). The Maturity Redemption Price, the Special Event Redemption Price and
the Optional Redemption Price are referred to collectively as the "Redemption
Price". Holders will be given not less than 30 nor more than 60 days notice of
such redemption.
(b) (i) The "Maturity Redemption Price", with respect to a
redemption of Securities, shall mean an amount equal to the principal of and
accrued and unpaid interest on the Debentures as of the maturity date thereof.
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(ii) In the case of an optional redemption, if fewer than all the
outstanding Securities are to be so redeemed, the Securities will be redeemed
Pro Rata and the Capital Securities to be redeemed will be determined as
described in Section 4(f)(ii) below. Upon the entry of an order for the
dissolution of the Trust by a court of competent jurisdiction, the Debentures
thereafter will be subject to optional repayment, in whole, but not in part, on
or after October 31, 2001 (the "Initial Optional Redemption Date").
The Debenture Issuer shall have the right (subject to the
conditions in the Indenture) to elect to prepay the Debentures in whole or in
part at any time on or after the Initial Optional Redemption Date, upon not less
than 30 days and not more than 60 days notice, at the Optional Redemption Price
and, simultaneous with such prepayment, to cause a Like Amount of the Securities
to be redeemed by the Trust at the Optional Redemption Price on a Pro Rata
basis. "Optional Redemption Price" shall mean a price equal to 100% of the
liquidation amount of Debentures to be prepaid plus accumulated and unpaid
interest thereon, if any, to the date of such prepayment.
(c) If at any time a Tax Event, a Regulatory Capital Event or an
Investment Company Event (each as defined below, and each a "Special Event")
occurs, the Debenture Issuer shall have the right (subject to the conditions set
forth in the Indenture) at any time, upon not less than 30 nor more than 60 days
notice, to prepay the Debentures in whole, but not in part, within the 90 days
following the occurrence of such Special Event (the "90 Day Period"), and,
simultaneous with such prepayment, to cause a Like Amount of the Securities to
be redeemed by the Trust at the Special Event Redemption Price on a Pro Rata
basis.
A "Tax Event" means (a) the receipt by the Debenture Issuer and
the Trust of an opinion of Weil, Gotshal & Manges LLP or any other nationally
recognized tax counsel experienced in such matters, to the effect that as a
result of (i) any amendment to, clarification of, or change (including any
announced prospective change) in, the laws or any regulations thereunder of the
United States or any political subdivision or taxing authority thereof or
therein, (ii) any amendment to, clarification of, or change in, an
interpretation or application of any such laws or regulations by any legislative
body, court, governmental agency or regulatory authority (including the
enactment of any legislation and the publication of any judicial decision or
regulatory determination or the publication of an explanation of legislation by
the staff of the Joint Committee on Taxation), (iii) any interpretation or
pronouncement that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position or
(iv) any judicial decision, administrative pronouncement, ruling, regulatory
procedure, notice, announcement (including any notice or announcement of intent
to adopt procedures or regulations) or any other actions taken by any
governmental agency or regulatory authority, which amendment or change is
enacted, promulgated, issued or announced or which interpretation or
pronouncement is issued or announced or which action is
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taken, in each case, on or after the Issue Date, there is more than an
insubstantial risk that (x) within 90 days the Trust is or will be subject to
United States federal income tax with respect to income received or accrued on
the Debentures, (y) interest payable by the Debenture Issuer on the Debentures
is not or will not be deductible by the Debenture Issuer, in whole or in part,
for United States federal income tax purposes, or (z) within 90 days the Trust
is or will be subject to more than a de minimis amount of other taxes, duties or
other governmental charges, or (b) a proposed audit adjustment by a taxing
authority which, if sustained, would result in any of the events described in
clauses (x), (y) or (z) above.
A "Regulatory Capital Event" means the receipt by the Debenture
Issuer and the Trust of an opinion of Weil, Gotshal & Manges LLP or any other
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 Office of Thrift Supervision,
the Board of Governors of the Federal Reserve System (the "Federal Reserve") or
any other federal bank regulatory agency 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, (i) the Debenture Issuer is or
within 90 days will be subject to capital adequacy requirements and such
requirements do not or will not permit the Capital Securities to constitute,
subject to limitations on inclusion of the Capital Securities as Tier 1 capital
by the Federal Reserve capital guidelines in effect as of the date of the
Prospectus relating to the Subscription Offering, Tier 1 capital (or its
then-equivalent) or (ii) the amount of net proceeds received from the sale of
the Capital Securities and contributed by the Debenture Issuer to its
subsidiary, Home Federal Savings Bank, does not or within 90 days will not
constitute Tier 1 (core) capital (or its then-equivalent).
An "Investment Company Event" means the receipt by the Debenture
Issuer and the Trust of an opinion of Weil, Gotshal & Manges LLP or any other
nationally recognized counsel experienced in such matters, to the effect that
(a) as a result of any amendment to, or change (including any announced
prospective change) in, the laws or any regulations thereunder of the United
States or any political subdivision or authority thereof or therein 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, there is
more than an insubstantial risk that the Trust is or within 90 days will be
considered an Investment Company that is required to be registered under the
Investment Company Act.
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"Special Event Redemption Price" shall mean, with respect to a
redemption of Securities, a price equal to 100% of the principal of a Like
Amount of Debentures to be prepaid plus accumulated and unpaid interest thereon,
if any, to the date of such prepayment.
(d) On and from the date fixed by the Administrators for any
distribution of Debentures and liquidation of the Trust: (i) the Securities will
no longer be deemed to be outstanding and (ii) the Clearing Agency or its
nominee (or any successor Clearing Agency or its nominee), as the Holder of the
Capital Securities, will receive a registered global certificate or certificates
representing the Debentures to be delivered upon such distribution and any
certificates representing Securities not held by the Clearing Agency or its
nominee (or any successor Clearing Agency or its nominee) will be deemed to
represent beneficial interests in a Like Amount of Debentures until such
certificates are presented to the Debenture Issuer or its agent for transfer or
reissue.
(e) The Trust may not redeem fewer than all the outstanding
Securities unless all accumulated and unpaid Distributions have been paid on all
Securities for all quarterly Distribution periods terminating on or before the
date of redemption.
(f) The procedure with respect to redemptions of, or distributions
of Debentures in exchange for, the Securities, shall be as follows:
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution Notice")
will be given by the Trust by mail to each Holder to be redeemed or exchanged
not fewer than 30 nor more than 60 days before the date fixed for redemption or
exchange thereof which, in the case of a redemption, will be the date fixed for
prepayment of the Debentures. The Redemption/Distribution Notice shall identify
the Securities to be redeemed or exchanged and shall state:
(A) the redemption/distribution date;
(B) the Redemption Price; provided, however, if the Redemption
Price is not known at the time the Redemption/Distribution Notice is sent,
such notice shall set forth the manner of calculation thereof;
(C) the name and address of the Paying Agent;
(D) that Securities called for redemption or exchange must be
surrendered to the Paying Agent to collect the Redemption Price;
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(E) if fewer than all of the outstanding Securities are to
redeemed or exchanged, the identification and amounts of the particular
Securities to be redeemed or exchanged, as the case may be;
(F) that, unless the Debenture Issuer defaults in paying the
Redemption Price, any distributions on the Securities called for
redemption will cease to accrue on and after such redemption date; and
(G) the CUSIP number, if any, of the Securities called for
redemption or exchange.
For purposes of the calculation of the date of redemption or exchange and the
dates on which notices are given pursuant to this Section 4(f)(i), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders. Each
Redemption/Distribution Notice shall be addressed to the Holders of Securities
at the address of each such Holder appearing in the books and records of the
Trust. No defect in the Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect the validity of the
redemption or exchange proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Securities
are to be redeemed, the Securities to be redeemed shall be redeemed Pro Rata
from each Holder of Securities, it being understood that, in respect of Capital
Securities registered in the name of and held of record by the Clearing Agency
or its nominee (or any successor Clearing Agency or its nominee), the
distribution of the proceeds of such redemption will be made to the Clearing
Agency and disbursed by such Clearing Agency in accordance with the procedures
applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, (which notice will be irrevocable), then (A)
with respect to Capital Securities issued in book-entry form, by 12:00 noon, New
York City time, on the redemption date, provided that the Debenture Issuer has
paid the Property Trustee a sufficient amount of cash in connection with the
related prepayment or maturity of the Debentures by 10:00 a.m., New York City
time, on the maturity date or the date of prepayment, as the case requires, the
Property Trustee will deposit irrevocably with the Clearing Agency or its
nominee (or successor Clearing Agency or its nominee) funds sufficient to pay
the applicable Redemption Price with respect to such Capital Securities, and (B)
with respect to Capital Securities issued in certificated form and Common
Securities, provided that the Debenture Issuer has paid the Property Trustee a
sufficient amount of cash in connection with the related prepayment or maturity
of the Debentures, the Property Trustee will pay the relevant
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Redemption Price to the Holders of such Securities against presentation to the
Paying Agent of the certificates therefor. If a Redemption/Distribution Notice
shall have been given and funds deposited as required, if applicable, then
immediately prior to the close of business on the date of such deposit, or on
the redemption date, as applicable, Distributions will cease to accumulate on
the Securities so called for redemption and all rights of Holders so called for
redemption will cease, except the right of the Holders of such Securities to
receive the Redemption Price, but without interest on such Redemption Price, and
such Securities shall cease to be outstanding.
(iv) Payment of accumulated and unpaid Distributions on the
Redemption Date of the Securities will be subject to the rights of Holders of
Securities on the close of business on a regular record date in respect of a
Distribution Date occurring on or prior to such Redemption Date.
Neither the Administrators nor the Trust shall be required to
register or cause to be registered the transfer of (i) any Securities beginning
on the opening of business 15 days before the day of mailing of a notice of
redemption or any notice of selection of Securities for redemption or (ii) any
Securities selected for redemption except the unredeemed portion of any Security
being redeemed. If any date fixed for redemption of Securities is not a Business
Day, then payment of the Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), with the same force and effect as
if made on such date fixed for redemption. If payment of the Redemption Price in
respect of any Securities is improperly withheld or refused and not paid either
by the Property Trustee or by the Sponsor as guarantor pursuant to the relevant
Securities Guarantee, Distributions on such Securities will continue to
accumulate from the original redemption date to the actual date of payment, in
which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price.
(v) Redemption/Distribution Notices shall be sent by the Property
Trustee on behalf of the Trust to (A) in respect of the Capital Securities, the
Clearing Agency or its nominee (or any successor Clearing Agency or its nominee)
if the Global Certificates have been issued or, if Definitive Capital Security
Certificates have been issued, to the Holder thereof, and (B) in respect of the
Common Securities, to the Holder thereof.
(vi) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws and banking laws),
provided the acquiror is not the Holder of the Common Securities or the obligor
under the Indenture, the Sponsor or any of 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.
I-9
<PAGE>
5. Conversion Rights.
Holders of Securities shall have the right at any time prior to
5:00 p.m. (New York City time) on the earlier of (i) the Business Day
immediately preceding the date of repayment of such Securities, whether at
maturity or upon redemption, and (ii) the Conversion Termination Date, if any,
to cause the Conversion Agent to exchange Securities, on behalf of the
converting Holders, for Debentures, which Debentures will be converted into
shares of Common Stock in the manner described herein on and subject to the
following terms and conditions:
(a) The Securities will be exchangeable for Debentures which will
be convertible at the office of the Conversion Agent into fully paid and
nonassessable shares of Common Stock pursuant to the Holder's direction to the
Conversion Agent to exchange such Securities for a portion of the Debentures
theretofore held by the Trust on the basis of one Security per $25 principal
amount of Debentures, and immediately convert such amount of Debentures into
fully paid and nonassessable shares of Common Stock at an initial per share
conversion price equal to 110% of the average of the daily last reported sales
prices of the Common Stock for the 10 consecutive days immediately preceding the
date of the Public Offering Prospectus or, in the event all of the Capital
Securities are sold in the Subscription Offering, for the 10 consecutive trading
days immediately preceding the Subscription Offering Expiration Date, in each
case as reported on the NYSE Composite Tape, subject to certain adjustments set
forth in the terms of the Debentures (as so adjusted, the "Conversion Price").
(b) To exchange the Securities for Debentures and to convert the
Debentures into Common Stock, the Holder shall submit to the Conversion Agent at
the office designated therefor an irrevocable request to convert Securities on
behalf of such Holder (the "Conversion Request"), together, if the Securities
are in certificated form, with such certificates. The Conversion Request shall
(i) set forth the number of Securities to be exchanged and the name or names, if
other than the Holder, in which the shares of Common Stock should be issued and
(ii) direct the Conversion Agent (A) to exchange such Securities for a portion
of the Debentures held by the Trust (at the rate of exchange specified in the
preceding paragraph) and (B) to immediately convert such Debentures on behalf of
such Holder, into Common Stock (at the Conversion Price specified in the
preceding paragraph). The Conversion Agent shall notify the Trust of the
Holder's election to exchange Securities for a portion of the Debentures held by
the Trust and the Trust shall, upon receipt of such notice, deliver to the
Conversion Agent the appropriate principal amount of Debentures for exchange in
accordance with this Section 5. The Conversion Agent shall thereupon notify the
Debenture Issuer of the Holder's election to convert such Debentures into shares
of Common Stock. Holders of Securities at 5:00 p.m. (New York City time) on a
record date for a Distribution Date will be entitled to receive the Distribution
payable on such Securities on the corresponding Distribution Date
notwithstanding
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<PAGE>
the conversion of such Securities following such record date but on or prior to
such Distribution Date. Except as provided in the immediately preceding
sentence, neither the Trust nor the Debenture Issuer will make, or be required
to make, any payment, allowance or adjustment for accumulated and unpaid
Distributions, whether or not in arrears, on converted Securities; provided,
however, that if notice of redemption of Securities is mailed or otherwise given
to Holders of Securities or the Trust issues a press release announcing a
Conversion Termination Date, then, if any Holder of Securities converts any
Securities into Common Stock on any date on or after the date on which such
notice of redemption is mailed or otherwise given or the date of such press
release, as the case may be, and if such Conversion Date falls on any day from
and including the first day of an Extension Period and on or prior to the
Distribution Date upon which such Extension Period ends, such converting holder
shall be entitled to receive either (i) if the Conversion Date falls after a
record date and on or prior to the next succeeding Distribution Date, all
accrued and unpaid Distributions on such Securities (including interest thereon,
if any, to the extent permitted by applicable law) to such Distribution Date or
(ii) if the Conversion Date does not fall on a date described in clause (i)
above, all accrued and unpaid Distributions on such Securities (including
interest thereon, if any, to the extent permitted by applicable law) to the most
recent Distribution Date prior to the Conversion Date, which Distributions
shall, in either such case, be paid to such converting holder unless the
Conversion Date of such Securities is on or prior to the Distribution Date upon
which such Extension Period ends and after the record date for such Distribution
Date, in which case such Distributions shall be paid to the Person who was the
Holder of such Securities (or one or more predecessor Securities) at 5:00 p.m.
(New York City time) on such record date. The Debenture Issuer shall make no
payment or allowance for distributions on the shares of Common Stock issued upon
such conversion, except to the extent that such shares of Common Stock are held
of record on the record date for any such distributions. Securities shall be
deemed to have been converted immediately prior to 5:00 p.m. (New York City
time) on the day on which a Conversion Request relating to such Securities is
received by the Trust in accordance with the foregoing provision (the
"Conversion Date"). The Person or Persons entitled to receive Common Stock
issuable upon conversion of the Debentures shall be treated for all purposes as
the record holder or holders of such Common Stock at such time. As promptly as
practicable on or after the Conversion Date, the Debenture Issuer shall issue
and deliver at the office of the Conversion Agent a certificate or certificates
for the number of full shares of Common Stock issuable upon such conversion,
together with the cash payment, if any, in lieu of any fraction of any share to
the Person or Persons entitled to receive the same, unless otherwise directed by
the Holder in the notice of conversion and the Conversion Agent shall distribute
such certificate or certificates to such Person or Persons.
(c) Each Holder of a Security by his acceptance thereof appoints
The Bank of New York (the "Conversion Agent") for the purpose of effecting the
exchange of Securities and conversion of Debentures in accordance with this
Section 5. In effecting the exchange,
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<PAGE>
conversion and transactions described in this Section 5, the Conversion Agent
shall be acting as agent of the Holders of Securities directing it to effect
such transactions. The Conversion Agent is hereby authorized (i) to exchange
Securities from time to time for Debentures held by the Trust in connection with
the conversion of such Securities in accordance with this Section 5 and (ii) to
convert all or a portion of the Debentures into Common Stock and thereupon to
deliver such shares of Common Stock in accordance with the provisions of this
Section 5 and to deliver to the Trust a new Debenture or Debentures for any
resulting unconverted principal amount.
(d) No fractional shares of Common Stock will be issued as a
result of conversion, but in lieu thereof, such fractional interest will be paid
in cash (based on the Closing Price of Common Stock on the Conversion Date) by
the Debenture Issuer to the Trust, which in turn will make such payment to the
Holder or Holders of Securities so exchanged.
(e) The Debenture Issuer shall at all times reserve and keep
available out of its authorized and unissued Common Stock, solely for issuance
upon the conversion of the Debentures, free from any preemptive or other similar
rights, such number of such shares of Common Stock as shall from time to time be
issuable upon the conversion of all the Debentures then outstanding.
Notwithstanding the foregoing, the Debenture Issuer shall be entitled to deliver
upon conversion of Debentures, shares of Common Stock reacquired and held in the
treasury of the Debenture Issuer (in lieu of the issuance of authorized and
unissued shares of Common Stock), so long as any such treasury shares are free
and clear of all liens, charges, security interests or encumbrances. Any shares
of Common Stock issued upon conversion of the Debentures shall be duly
authorized, validly issued, fully paid and nonassessable. The Trust shall
deliver the shares of Common Stock received upon conversion of the Debentures to
the converting Holder free and clear of all liens, charges, security interests
and encumbrances, except for United States withholding taxes. Each of the
Debenture Issuer and the Trust shall prepare and shall use its best efforts to
obtain and keep in force such governmental or regulatory permits or other
authorizations as may be required by law, and shall comply with all applicable
requirements as to registration or qualification of the Common Stock issuable
upon conversion of Debentures (and all requirements to list on any national
securities exchange or quotation system such Common Stock that are at the time
applicable), to enable the Debenture Issuer to lawfully issue Common Stock to
the Trust upon conversion of the Debentures and the Trust to lawfully deliver
Common Stock to each Holder upon such conversion.
(f) The Debenture Issuer shall pay any and all taxes that may be
payable in respect of the issue or delivery of shares of Common Stock on
conversion of Debentures and the delivery of shares of Common Stock by the Trust
to the Holder upon conversion. The Debenture Issuer shall not, however, be
required to pay any tax that may be payable in respect
I-12
<PAGE>
of any transfer involved in the issue and delivery of shares of Common Stock in
a name other than that in which the Securities so converted were registered, and
no such issue or delivery shall be made unless and until the Person requesting
such issue has paid to the Trust the amount of any such tax or has established
to the satisfaction of the Trust that such tax has been paid.
(g) Nothing in the preceding Section 5(f) shall limit the
requirement of the Trust to withhold taxes pursuant to the terms of the
Securities or as set forth in this Annex I to the Declaration or the Declaration
itself or otherwise require the Property Trustee or the Trust to pay any amounts
on account of such withholdings.
(h) (i) On and after October 31, 2001, the Debenture Issuer shall
have the right, at its option, to cause the conversion rights of holders of the
Debentures to convert the Debentures into Common Stock to terminate, in which
case the rights of Holders of the Securities to convert the Securities into
Common Stock pursuant to this Section 5 will likewise terminate, if (x) the
Trust is current in the payment of Distributions on the Securities (except to
the extent that the payment of Distributions may have been deferred as the
result of an Extension Period) and (y) for at least 20 trading days within any
period of 30 consecutive trading days ending on or after October 31, 2001,
including the last trading day of such period, the Closing Price of the Common
Stock on each of such 20 trading days shall have exceeded 110% of the Conversion
Price in effect on such trading day.
(ii) To exercise its option to cause the conversion rights of
Holders of the Securities to terminate, the Debenture Issuer must cause the
Trust to issue a press release for publication on the Dow Jones News Service or
on a comparable news service (the "Press Release") prior to the opening of
business on the second trading day after any period in which the conditions in
paragraph 5(h)(i) have been met (which date shall not be prior to October 31,
2001), which Press Release shall state that the Debenture Issuer has elected to
exercise its right to terminate the conversion rights of holders of Debentures
and Holders of Securities, specify the Conversion Termination Date and provide
the current Conversion Price of the Securities and the Closing Price of the
Capital Securities and the Common Stock, in each case as of the close of
business on the trading day next preceding the date of the Press Release. If the
Debenture Issuer exercises the option described in this paragraph 5(h), the
"Conversion Termination Date" shall be the Business Day selected by the
Debenture Issuer which shall not be less than 30 nor more than 60 calendar days
after the date on which the Trust issues the Press Release. If the Debenture
Issuer does not exercise the option described in this paragraph 5(h), and the
Securities are otherwise called for redemption, the Securities will be
convertible until 5:00 p.m. (New York City time) on the Business Day immediately
preceding the date of such redemption.
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<PAGE>
(iii) In addition to the Press Release, notice of the termination
of conversion rights of Holders of the Securities (a "Notice of Conversion
Termination") must be given by the Trust by first-class mail to each Holder of
Securities not more than four Business Days after the Trust issues the Press
Release. Each such mailed Notice of Conversion Termination shall state: (1) the
Conversion Termination Date; (2) the Conversion Price of the Securities and the
Closing Price of the Capital Securities and the Common Stock, in each case as of
the close of business on the trading day next preceding the date of the Notice
of Conversion Termination; (3) that Securities will be convertible until 5:00
p.m. (New York City time) on the Conversion Termination Date and the place or
places at which a conversion notice may be given and Securities (if not in
book-entry form) may be surrendered for conversion into shares of Common Stock;
and (4) such other information or instructions as the Trust deems necessary or
advisable to enable a Holder to exercise its conversion rights hereunder. For
purposes of the calculation of the Conversion Termination Date and the dates on
which notices are given pursuant to this paragraph 5(h)(iii), a Notice of
Conversion Termination shall be deemed to have been given on the day such notice
is first mailed by first-class mail, postage prepaid, to each Holder of
Securities at the address of such Holder appearing in the books and records of
the Trust (whether or not any such Holder receives the Notice of Conversion
Termination). No defect in the Notice of Conversion Termination or in the
mailing thereof with respect to any Security shall affect the validity of such
notice with respect to any other Security. As of 5:00 p.m. (New York City time)
on the Conversion Termination Date, the Securities shall be deemed to be
non-convertible securities.
(iv) The term "Closing Price" of any security on any day means the
last reported sale price of such security, regular way on such day, or, if no
sale takes place on such day, the average of the reported closing bid and asked
prices on such day, regular way, in either case as reported on the NYSE
Composite Tape, or, if such security is not listed or admitted to trading on the
NYSE, on the principal national securities exchange on which such security is
listed or admitted to trading, or, if such security is not listed or admitted to
trading on a national securities exchange, on the National Market System of the
National Association of Securities Dealers, Inc., or, if such security is not
quoted or admitted to trading on such quotation system, on the principal
quotation system on which such security may be listed or admitted to trading or
quoted, or, if not listed or admitted to trading or quoted on any national
securities exchange or quotation system, the average of the closing bid and
asked prices of such security in the over-the-counter market on the day in
question as reported by the National Quotation Bureau Incorporated, or a similar
generally accepted reporting service, or, if not so available in such manner, as
furnished by any NYSE member firm selected from time to time by the Board of
Directors of the Sponsor for that purpose or, if not so available in such
manner, as otherwise determined in good faith by the Board of Directors of the
Sponsor.
I-14
<PAGE>
6. Voting Rights - Capital Securities.
(a) Except as provided under Sections 6(b) and 8 and as otherwise
required by law and the Declaration, the Holders of the Capital Securities will
have no voting rights.
(b) So long as any Debentures 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 such Debenture Trustee with respect to the
Debentures, (ii) waive any past default that is waivable under Section 5.7 of
the Indenture, (iii) exercise any right to rescind or annul a declaration of
acceleration of the maturity of the principal of the Debentures or (iv) consent
to any amendment, modification or termination of the Indenture or the
Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of a Majority in liquidation amount
of all outstanding Capital Securities; provided, however, that where a consent
under the Indenture would require the consent of each holder of Debentures
affected thereby, no such consent shall be given by the Property Trustee without
the prior approval of each Holder of the Capital Securities. The 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. Subject to
Section 2.7 of the Declaration, the Property Trustee shall notify each Holder of
Capital Securities of any notice of default with respect to the Debentures. In
addition to obtaining the foregoing approvals of such Holders of the Capital
Securities, prior to taking any of the foregoing actions, the Trustees shall
obtain an opinion of counsel experienced in such matters to the effect that, as
a result of such action, the Trust will not be classified as an association
taxable as a corporation for United States federal income tax purposes and (ii)
the Holders will not recognize gain or loss for federal income tax purposes.
If an Event of Default under the Declaration has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay principal of or premium, if any, or interest on the Debentures on the due
date (or in the case of prepayment, on the prepayment date), then a Holder of
Capital Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of or premium, if any, or interest on a
Like Amount of Debentures (a "Direct Action") on or after the respective due
date specified in the Debentures. In connection with such Direct Action, the
rights of the Common Securities Holder will be subordinated to the rights of
such Holder of Capital Securities to the extent of any payment made by the
Debenture Issuer to such Holder of Capital Securities in such Direct Action.
Except as provided in the second preceding sentence or as otherwise provided in
the Declaration, the Holders of Capital Securities will not be able to exercise
directly any other remedy available to the holders of the Debentures.
I-15
<PAGE>
Any approval or direction of Holders of Capital Securities may be
given at a separate meeting of Holders of Capital Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Administrators will cause a notice of any
meeting at which Holders of 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 mailed to each Holder of record of Capital Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Capital Securities will
be required for the Trust to redeem and cancel Capital Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of 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 Sponsor or any Affiliate of the Sponsor
shall not be entitled to vote or consent and shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
7. Voting Rights - Common Securities.
(a) Except as provided under Sections 7(b), 7(c) and 8 as
otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) Unless an Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by the holder of the Common
Securities. If an 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 Administrators, which voting rights are vested
exclusively in the Holders of the Common Securities. No resignation or removal
of a Trustee or Administrator and no appointment of a successor trustee or
administrator shall be effective until the acceptance of appointment by the
successor trustee or administrator in accordance with the provisions of the
Declaration.
(c) So long as any Debentures 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 such Debenture Trustee with respect to the
Debentures, (ii) waive any past default that is waivable
I-16
<PAGE>
under Section 5.7 of the Indenture, (iii) exercise any right to rescind or annul
a declaration of acceleration of the maturity of the principal of the Debentures
or (iv) consent to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of a Majority in liquidation amount
of all outstanding Common Securities; provided, however, that where a consent
under the Indenture would require the consent of each holder of Debentures
affected thereby, no such consent shall be given by the Property Trustee without
the prior approval of each Holder of the Common Securities. The Trustees shall
not revoke any action previously authorized or approved by a vote of the Holders
of the Common Securities except by subsequent vote of such Holders. Subject to
Section 2.7 of the Declaration, the Property Trustee shall notify each Holder of
Common Securities of any notice of default with respect to the Debentures. In
addition to obtaining the foregoing approvals of such Holders of the Common
Securities, prior to taking any of the foregoing actions, the Trustees shall
obtain an opinion of counsel experienced in such matters to the effect that, as
a result of such action, the Trust will not be classified as an association
taxable as a corporation for United States federal income tax purposes and (ii)
the Holders will not recognize gain or loss for federal income tax purposes.
If an Event of Default under the Declaration has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay principal of or premium, if any, or interest on the Debentures on the due
date (or in the case of prepayment, on the prepayment date), then a Holder of
Common Securities may institute a Direct Action for enforcement of payment to
such Holder of the principal of or premium, if any, or interest on a Like Amount
of Debentures on or after the respective due date specified in the Debentures.
In connection with any Direct Action, the rights of the Common Securities Holder
will be subordinated to the rights of such Holder of Capital Securities to the
extent of any payment made by the Debenture Issuer to such Holder of Common
Securities in such Direct Action. Except as provided in the second preceding
sentence, the Holders of Common Securities will not be able to exercise directly
any other remedy available to the holders of the Debentures.
Any approval or direction of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Administrators will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such
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<PAGE>
Holders are entitled to vote or of such matter upon which written consent is
sought and (iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
8. Amendments to Declaration.
In addition to the requirements set out in Section 12.1 of the
Declaration, the Declaration may be amended from time to time by the Sponsor,
the Property Trustee and the Administrators, without the consent of the Holders
of the Securities (i) to cure any ambiguity, correct or supplement any
provisions in the Declaration that may be inconsistent with any other
provisions, 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 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 Securities, and any such amendments of the Declaration shall
become effective when notice thereof is given to the holders of the Securities.
The Declaration may be amended by the Trustees, the Administrators and the
Sponsor with (i) the consent of Holders representing a Majority in liquidation
amount of all outstanding Securities, and (ii) receipt by the Trustees and the
Administrators of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees or Administrators 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 or result in the
Holders recognizing gain or loss for federal income tax purposes, provided that,
without the consent of each Holder of Securities, the Declaration may not be
amended to (i) change the amount or timing of any Distribution on the Securities
or otherwise adversely affect the amount of any Distribution required to be made
in respect of the Securities as of a specified date or (ii) restrict the right
of a holder of Securities to institute suit for the enforcement of any such
payment on or after such date.
9. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
according to the aggregate
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<PAGE>
liquidation amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities outstanding unless, in
relation to a payment, an Event of Default under the Declaration has occurred
and is continuing, in which case any funds available to make such payment shall
be paid first to each Holder of the Capital Securities pro rata according to the
aggregate liquidation amount of Capital Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Capital Securities
outstanding, and only after satisfaction of all amounts owed to the Holders of
the Capital Securities, to each Holder of Common Securities pro rata according
to the aggregate liquidation amount of Common Securities held by the relevant
Holder relative to the aggregate liquidation amount of all Common Securities
outstanding. In any such proration, the Trust may make such adjustments as may
be appropriate in order that only Securities in authorized denominations shall
be redeemed.
10. Ranking.
The Capital Securities rank pari passu with the Common Securities
and payment thereon shall be made Pro Rata with the Common Securities, except
that, if an Event of Default under the Declaration occurs and is continuing, no
payments in respect of Distributions on, or payments upon liquidation,
redemption or otherwise with respect to, the Common Securities shall be made
until the Holders of the Capital Securities shall be paid in full the
Distributions, Redemption Price, Liquidation Distribution and other payments to
which they are entitled at such time.
11. Acceptance of Securities Guarantee and Indenture.
Each Holder of Capital Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Capital Securities Guarantee
and the Common Securities Guarantee, respectively, including the subordination
provisions therein and to the provisions of the Indenture.
12. No Preemptive Rights.
The Holders of the Securities shall have no preemptive or similar
rights to subscribe for any additional securities.
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<PAGE>
13. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Capital
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture (including any supplemental indenture) to a Holder without
charge on written request to the Sponsor at its principal place of business.
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<PAGE>
EXHIBIT A-1
FORM OF CONVERTIBLE TRUST PREFERRED SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[IF THIS GLOBAL SECURITY IS A GLOBAL CONVERTIBLE TRUST PREFERRED
SECURITY ("CAPITAL SECURITY"), INSERT: THIS CAPITAL SECURITY IS A GLOBAL CAPITAL
SECURITY WITHIN THE MEANING OF THE DECLARATION HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE "CLEARING AGENCY")
OR A NOMINEE OF THE CLEARING AGENCY. THIS CAPITAL SECURITY IS EXCHANGEABLE FOR
CAPITAL SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE CLEARING
AGENCY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
DECLARATION AND NO TRANSFER OF THIS CAPITAL SECURITY (OTHER THAN A TRANSFER OF
THIS CAPITAL SECURITY AS A WHOLE BY THE CLEARING AGENCY TO A NOMINEE OF THE
CLEARING AGENCY OR BY A NOMINEE OF THE CLEARING AGENCY TO THE CLEARING AGENCY OR
ANOTHER NOMINEE OF THE CLEARING AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) TO THE TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CAPITAL 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 A PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
A-1
<PAGE>
Certificate Number Number of Convertible Trust Preferred Securities
CUSIP NO. __________
Certificate Evidencing Convertible Trust Preferred Securities
of
New York Bancorp Capital Trust
8.00% Convertible Trust Preferred Securities
(liquidation amount $25 per Capital Security)
New York Bancorp Capital Trust, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
_____ (the "Holder") is the registered owner of [$_______ in aggregate
liquidation amount of Convertible Trust Preferred Securities of the Trust]1 [the
aggregate liquidation amount of Convertible Trust Preferred Securities of the
Trust specified in Schedule A hereto]2 representing undivided beneficial
interests in the assets of the Trust designated the 8.00% Convertible Trust
Preferred Securities (liquidation amount $25 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. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Capital Securities represented hereby are issued and shall in all respects
be subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust dated as of __________, 1997, as the same may be amended from time to
time (the "Declaration"), including the designation of the terms of the Capital
Securities as set forth in Annex I to the Declaration. Capitalized terms used
but not defined herein shall have the meaning given them in the Declaration. The
Sponsor will provide a copy of the Declaration, the Capital Securities Guarantee
and the Indenture to a Holder without charge upon written request to the Trust
at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder and to the benefits of
the Capital Securities Guarantee, to the extent provided therein.
By its acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Trust as a grantor trust, the Debentures as
indebtedness and the Capital Securities as evidence of indirect beneficial
ownership in the Debentures.
- --------
1 Insert in Definitive Capital Securities only.
2 Insert in Global Capital Securities only.
A-2
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this
day of , .
NEW YORK BANCORP CAPITAL TRUST
By:
-------------------------------
Name:
Title: Administrator
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the
within-mentioned Declaration.
Dated: ________ __, 1997
The Bank of New York,
as Property Trustee
By:
---------------------------
Authorized Signatory
A-3
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Capital Security will be fixed at a
rate per annum of 8.00% (the "Coupon Rate") of the liquidation amount of $25 per
Capital Security, such rate being the rate of interest payable on the Debentures
to be held by the Property Trustee. Distributions in arrears for more than one
quarter period will bear interest thereon compounded quarterly at the Coupon
Rate (to the extent permitted by applicable law). The term "Distributions", as
used herein, includes such cash distributions and any such interest payable
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Property Trustee and
to the extent the Property Trustee has funds on hand legally available therefor.
Distributions on the Capital Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or
duly provided for or, if no Distributions have been paid or duly provided for,
from _________________, 1997 and will be payable quarterly in arrears, on
January 31, April 30, July 31 and October 31 of each year, commencing on January
31, 1998, except as otherwise described below. Distributions will be computed on
the basis of a 360-day year consisting of twelve 30-day months and, for any
period less than a full calendar month, the number of days elapsed in such
month. As long as no Event of Default has occurred and is continuing under the
Indenture, the Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period at any time and
from time to time on the Debentures for a period not exceeding 20 consecutive
calendar quarters, including the first quarter during such extension period
(each an "Extension Period"), provided that no Extension Period shall end on a
day other than an interest payment date for the Debentures or shall extend
beyond the Maturity Date of the Debentures. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accumulate with interest thereon (to the extent
permitted by applicable law, but not at a rate exceeding the rate of interest
then accruing on the Debentures) at the Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further defer payments of interest by further
extending such Extension Period; provided that such Extension Period, together
with all such previous and further extensions within such Extension Period, may
not exceed 20 consecutive quarters, including the first quarter during such
Extension Period, or extend beyond the Maturity Date of the Debentures. Payments
of accumulated Distributions will be payable to Holders as they appear on the
books and records of the Trust on the first record date preceding the end of the
Extension Period. Upon the termination of any Extension Period and the payment
of all amounts then due, the Debenture Issuer may commence a new Extension
Period, subject to the above requirements.
A-4
<PAGE>
Subject to the prior obtaining of any regulatory approval then
required and to certain other conditions set forth in the Declaration and the
Indenture, the Property Trustee may, at the direction of the Holder of the
Common Securities, at any time dissolve the Trust and, after satisfaction of
liabilities to creditors of the Trust as required by applicable law, cause the
Debentures to be distributed to the holders of the Securities in liquidation of
the Trust or, simultaneous with any prepayment of the Debentures, cause a Like
Amount of the Securities to be redeemed by the Trust.
The Capital Securities shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles that would call for the application of the substantive law of
any jurisdiction other than the State of Delaware).
The Capital Securities shall be redeemable as provided in the
Declaration.
The Capital Securities shall be convertible into shares of Common
Stock, through (i) the exchange of Capital Securities for an appropriate
principal amount of Debentures and (ii) the immediate conversion of such
Debentures into shares of Common Stock, in the manner and according to the terms
set forth in Annex I to the Declaration and in the Indenture. The conversion
rights of the Holders of Capital Securities are subject to termination at the
option of the Debenture Issuer on and after October 31, 2001, subject to and
upon satisfaction of certain conditions set forth in Annex I to the Declaration
and in the Indenture.
A-5
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital Security
certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignees 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)
Signature Guarantee(3): ___________________________________
- --------
3 Signature must be guaranteed by an "eligible guarantor institution" that
is a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities and Exchange Act of 1934, as
amended.
A-6
<PAGE>
Schedule A(1)
The initial aggregate liquidation amount of Capital Securities
evidenced by the Certificate to which this Schedule is attached is
$_____________ (equivalent to ______ Capital Securities). The notations on the
following table evidence decreases and increases in the number of Capital
Securities evidenced by such Certificate.
Liquidation Amount
Decrease in Increase in of Capital Securities
Liquidation Amount Liquidation Amount After such Decrease Notation by
of Capital Securities of Capital Securities or Increase Registrar
- --------------------- --------------------- ----------- ---------
- --------
1 Append to Global Capital Securities only.
A-7
<PAGE>
CONVERSION REQUEST
To: [Name of Trustee], as Conversion Agent of Holders of Capital Securities
The undersigned owner of these Capital Securities hereby
irrevocably exercises the option to convert these Capital Securities, or the
portion below designated, into Common Stock of New York Bancorp Inc. (the
"Common Stock") in accordance with the terms of the Amended and Restated
Declaration of Trust (the "Declaration"), dated as of __________ __, 1997, by
Stan I. Cohen and David Fry, as Administrators, The Bank of New York (Delaware),
as Delaware Trustee, The Bank of New York, as Property Trustee, New York Bancorp
Inc., as Sponsor, and by the Holders, from time to time, of undivided beneficial
interests in the assets of the Trust to be issued pursuant to the Declaration.
Pursuant to the aforementioned exercise of the right to convert these Capital
Securities, the undersigned hereby directs the Conversion Agent (as that term is
defined in the Declaration) to (i) exchange such Capital Securities for a
portion of the Debentures (as that term is defined in the Declaration) held by
the Trust (at the rate of exchange specified in the terms of the Capital
Securities set forth as Annex I to the Declaration) and (ii) immediately convert
such Debentures on behalf of the undersigned, into Common Stock (at the
conversion price specified in the terms of the Capital Securities set forth as
Annex I to the Declaration).
The undersigned also hereby directs the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Date: __________________
Number of Capital Securities to be converted: ____________________
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Common Stock are to be issued,
along with the address or addresses of such person or persons.
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- -----------------------------------------
(Sign exactly as your name appears on the other side of this Capital Security
certificate) (for conversion only)
A-8
<PAGE>
Please Print or Type Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number.
- ---------------------------------------
- ---------------------------------------
- ---------------------------------------
Signature Guarantee: *____________________________
- ----------------------------
* Signature must be guaranteed by an "eligible guarantor institution" that
is a bank, stockholder, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
A-9
<PAGE>
EXHIBIT B-1
FORM OF COMMON SECURITY CERTIFICATE
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW. NEITHER THIS COMMON SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT UPON LIMITED CIRCUMSTANCES SET FORTH IN THE DECLARATION.
B-1
<PAGE>
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
New York Bancorp Capital Trust
8.00%Common Securities
(liquidation amount $25 per Common Security)
New York Bancorp Capital Trust, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that New
York Bancorp Inc. (the "Holder") is the registered owner of ____________ common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust designated the 8.00% Convertible Common Securities
(liquidation amount $25 per Common Security) (the "Common Securities"). The
Common Securities are not transferable except to the extent permitted by the
Declaration. The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust dated as of ___________, 1997, as the
same may be amended from time to time (the "Declaration"), including the
designation of the terms of the Common Securities as set forth in Annex I to the
Declaration. Capitalized terms used but not defined herein shall have the
meaning given them in the Declaration. The Sponsor will provide a copy of the
Declaration, the Common Securities Guarantee and the Indenture (including any
supplemental indenture) to a Holder without charge upon written request to the
Sponsor at its principal place of business.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder and to the benefits of
the Common Securities Guarantee to the extent provided therein.
By its acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Trust as a grantor trust, the Debentures as
indebtedness and the Common Securities as evidence of indirect beneficial
ownership in the Debentures.
B-2
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this
___ day of ________ , 1997.
NEW YORK BANCORP CAPITAL TRUST
By:
-------------------------------
Name:
Title: Administrator
B-3
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a
rate per annum of 8.00% (the "Coupon Rate") of the liquidation amount of $25 per
Common Security, such rate being the rate of interest payable on the Debentures
to be held by the Property Trustee. Distributions in arrears for more than one
quarter will bear interest thereon compounded quarterly at the Coupon Rate (to
the extent permitted by applicable law). The term "Distributions", as used
herein, includes such cash distributions and any such interest payable unless
otherwise stated. A Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Property Trustee and to the extent
the Property Trustee has funds legally available therefor.
Distributions on the Common Securities will be cumulative, will
accrue from the most recent date to which Distributions have been paid or duly
provided or, if no Distributions have been paid or duly provided, from
___________, 1997 and will be payable quarterly in arrears, on January 31, April
30, July 31 and October 31 of each year, commencing on January 31, 1998, except
as otherwise described below. Distributions will be computed on the basis of a
360-day year consisting of twelve 30-day months and, for any period less than a
full calendar month, the number of days elapsed in such month. As long as no
Event of Default has occurred and is continuing under the Indenture, the
Debenture Issuer has the right under the Indenture to defer payments of interest
by extending the interest payment period at any time and from time to time on
the Debentures for a period not exceeding 20 consecutive calendar quarters,
including the first such quarter during such extension period (each an
"Extension Period"), provided that no Extension Period shall end on a day other
than an interest payment date for the Debentures or extend beyond the Maturity
Date of the Debentures. As a consequence of such deferral, Distributions will
also be deferred. Despite such deferral, Distributions will continue to
accumulate with interest thereon (to the extent permitted by applicable law, but
not at a rate exceeding the rate of interest then accruing on the Debentures) at
the Coupon Rate compounded quarterly during any such Extension Period. Prior to
the termination of any such Extension Period, the Debenture Issuer may further
defer payments of interest by further extending such Extension Period; provided
that such Extension Period, together with all such previous and further
extensions within such Extension Period, may not exceed 20 consecutive quarters,
including the first quarter during such Extension Period, or extend beyond the
Maturity Date of the Debentures. Payments of accrued Distributions will be
payable to Holders as they appear on the books and records of the Trust on the
first record date preceding the end of the Extension Period. Upon the
termination of any Extension Period and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the above
requirements.
Subject to the Sponsor obtaining any regulatory prior approval
then required and to certain other conditions set forth in the Declaration and
the Indenture, the Property
B-4
<PAGE>
Trustee may, at the direction of the Holders of the Common Securities, at any
time dissolve the Trust and, after satisfaction of liabilities to creditors of
the Trust as required by applicable law, cause the Debentures to be distributed
to the holders of the Securities in liquidation of the Trust or, simultaneous
with any prepayment of the Debentures, cause a Like Amount of the Securities to
be redeemed by the Trust.
The Common Securities shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflicts
by laws principles that would call for the application of the substantive law of
any jurisdiction other than the State of Delaware).
The Common Securities shall be redeemable as provided in the
Declaration.
The Common Securities shall be convertible into shares of Common
Stock, through (i) the exchange of Common Securities for an appropriate
principal amount of Debentures and (ii) the immediate conversion of such
Debentures into shares of Common Stock, in the manner and according to the terms
set forth in Annex I to the Declaration and in the Indenture. The conversion
rights of the Holders of Common Securities are subject to termination at the
option of the Debenture Issuer on and after October 31, 2001, subject to and
upon satisfaction of certain conditions set forth in Annex I to the Declaration
and in the Indenture.
---------------------
B-5
<PAGE>
CONVERSION REQUEST
To: [Name of Trustee], as Conversion Agent of Holders of Common Securities
The undersigned owner of these Common Securities hereby irrevocably
exercises the option to convert these Common Securities, or the portion below
designated, into Common Stock of New York Bancorp Inc. (the "Common Stock") in
accordance with the terms of the Amended and Restated Declaration of Trust (the
"Declaration"), dated as of __________ __, 1997, by Stan I. Cohen and David Fry,
as Administrators, The Bank of New York (Delaware), as Delaware Trustee, The
Bank of New York, as Property Trustee, New York Bancorp Inc., as Sponsor, and by
the Holders, from time to time, of undivided beneficial interests in the assets
of the Trust to be issued pursuant to the Declaration. Pursuant to the
aforementioned exercise of the right to convert these Common Securities, the
undersigned hereby directs the Conversion Agent (as that term is defined in the
Declaration) to (i) exchange such Common Securities for a portion of the
Debentures (as that term is defined in the Declaration) held by the Trust (at
the rate of exchange specified in the terms of the Common Securities set forth
as Annex I to the Declaration) and (ii) immediately convert such Debentures on
behalf of the undersigned, into Common Stock (at the conversion price specified
in the terms of the Common Securities set forth as Annex I to the Declaration).
The undersigned also hereby directs the Conversion Agent that the shares
issuable and deliverable upon conversion, together with any check in payment for
fractional shares, be issued in the name of and delivered to the undersigned,
unless a different name has been indicated in the assignment below. If shares
are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto.
Date: __________________
Number of Common Securities to be converted: ____________________
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Common Stock are to be issued,
along with the address or addresses of such person or persons.
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- -----------------------------------------
(Sign exactly as your name appears on the other side of this Common Security
certificate) (for conversion only)
B-6
<PAGE>
Please Print or Type Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number.
- -----------------------------------
- -----------------------------------
- -----------------------------------
Signature Guarantee: *____________________________
- ----------------------------
* Signature must be guaranteed by an "eligible guarantor institution" that
is a bank, stockholder, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
B-7
EXHIBIT 4.5
================================================================================
NEW YORK BANCORP INC.
------------------------------
------------------------------
INDENTURE
DATED AS OF _________, 1997
------------------------------
THE BANK OF NEW YORK
as Trustee
------------------------------
JUNIOR CONVERTIBLE SUBORDINATED DEBENTURES
================================================================================
NYFS10...:\81\65281\0001\1819\IND8217Z.28B
<PAGE>
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as of
__________, 1997 between New York Bancorp Inc. and The Bank of New York, as
Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1)..................................................................6.9
(a)(2) .................................................................6.9
310(a)(3)..................................................................N/A
(a)(4)..................................................................N/A
310(a)(5)...........................................................6.10, 6.11
310(b).....................................................................N/A
310(c)....................................................................6.13
311(a) and (b).............................................................N/A
311(c).............................................................4.1, 4.2(a)
312(a).....................................................................4.2
312(b) and (c).............................................................4.4
313(a).....................................................................4.4
313(b)(1)..................................................................4.4
313(b)(2)..................................................................4.4
313(c).....................................................................4.4
313(d).....................................................................4.4
314(a).....................................................................4.3
314(b).....................................................................N/A
314(c)(1) and (2)..........................................................6.7
314(c)(3)..................................................................N/A
314(d) ....................................................................N/A
314(e).....................................................................6.7
314(f) ....................................................................N/A
315(a)(c) and (d)..........................................................6.1
315(b) ....................................................................5.8
315(e) ....................................................................5.9
316(a)(1) .................................................................5.7
316(a)(2) .................................................................N/A
316(a) last sentence ......................................................2.9
316(b) ....................................................................9.2
317(a) ....................................................................5.5
317(b) ....................................................................6.5
318(a) ...................................................................13.8
- ------------------
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
i
<PAGE>
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS.................................................... 1
SECTION 1.1. Definitions.......................................... 1
ARTICLE II - SECURITIES.................................................... 10
SECTION 2.1. Forms Generally...................................... 10
SECTION 2.2. Execution and Authentication......................... 11
SECTION 2.3. Form and Payment..................................... 11
SECTION 2.4. Global Security...................................... 11
SECTION 2.5. Interest............................................. 13
SECTION 2.6. Transfer and Exchange................................ 14
SECTION 2.7. Replacement Securities............................... 15
SECTION 2.8. [Intentionally Omitted].............................. 15
SECTION 2.9. Temporary Securities................................. 15
SECTION 2.10. Cancellation....................................... 16
SECTION 2.11. Defaulted Interest................................. 16
SECTION 2.12. CUSIP Numbers...................................... 17
ARTICLE III - PARTICULAR COVENANTS OF THE COMPANY.......................... 17
SECTION 3.1. Payment of Principal, Premium and Interest........... 17
SECTION 3.2. Offices for Notices and Payments, Etc................ 17
SECTION 3.3. Appointments to Fill Vacancies in Trustee's Office... 18
SECTION 3.4. Provision as to Paying Agent......................... 18
SECTION 3.5. Certificate to Trustee............................... 19
SECTION 3.6. Compliance with Consolidation Provisions............. 19
SECTION 3.7. Limitation on Dividends.............................. 20
SECTION 3.8. Covenants as to NYB Trust............................ 20
SECTION 3.9. Payment of Expenses.................................. 21
SECTION 3.10. Payment Upon Resignation or Removal................ 21
ARTICLE IV - SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE...................................... 22
SECTION 4.1. Securityholders' Lists............................... 22
SECTION 4.2. Preservation and Disclosure of Lists................. 22
SECTION 4.3. Reports by Company................................... 23
SECTION 4.4. Reports by the Trustee............................... 24
ARTICLE V - REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.......................................... 25
SECTION 5.1. Events of Default.................................... 25
SECTION 5.2. Payment of Securities on Default; Suit Therefor...... 26
SECTION 5.3. Application of Moneys Collected by Trustee........... 28
ii
<PAGE>
SECTION 5.4. Proceedings by Securityholders....................... 29
SECTION 5.5. Proceedings by Trustee............................... 30
SECTION 5.6. Remedies Cumulative and Continuing................... 30
SECTION 5.7. Direction of Proceedings and Waiver of Defaults
by Majority of Securityholders....................... 30
SECTION 5.8. Notice of Defaults................................... 31
SECTION 5.9. Undertaking to Pay Costs............................. 32
ARTICLE VI - CONCERNING THE TRUSTEE........................................ 32
SECTION 6.1. Duties and Responsibilities of Trustee............... 32
SECTION 6.2. Reliance on Documents, Opinions, Etc................. 33
SECTION 6.3. No Responsibility for Recitals, Etc.................. 34
SECTION 6.4. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Securities............... 35
SECTION 6.5. Moneys to be Held in Trust........................... 35
SECTION 6.6. Compensation and Expenses of Trustee................. 35
SECTION 6.7. Officers' Certificate as Evidence.................... 36
SECTION 6.8. Conflicting Interest of Trustee...................... 36
SECTION 6.9. Eligibility of Trustee............................... 36
SECTION 6.10. Resignation or Removal of Trustee.................. 37
SECTION 6.11. Acceptance by Successor Trustee.................... 38
SECTION 6.12. Succession by Merger, Etc.......................... 39
SECTION 6.13. Limitation on Rights of Trustee as a Creditor...... 39
SECTION 6.14. Authenticating Agents.............................. 39
ARTICLE VII - CONCERNING THE SECURITYHOLDERS............................... 40
SECTION 7.1. Action by Securityholders............................ 40
SECTION 7.2. Proof of Execution by Securityholders................ 41
SECTION 7.3. Who Are Deemed Absolute Owners....................... 41
SECTION 7.4. Securities Owned by Company Deemed Not Outstanding... 42
SECTION 7.5. Revocation of Consents; Future Holders Bound......... 42
ARTICLE VIII - SECURITYHOLDERS' MEETINGS................................... 43
SECTION 8.1. Purposes of Meetings................................. 43
SECTION 8.2. Call of Meetings by Trustee.......................... 43
SECTION 8.3. Call of Meetings by Company or Securityholders....... 43
SECTION 8.4. Qualifications for Voting............................ 44
SECTION 8.5. Regulations.......................................... 44
SECTION 8.6. Voting............................................... 45
ARTICLE IX - AMENDMENTS.................................................... 46
SECTION 9.1. Without Consent of Securityholders................... 46
SECTION 9.2. With Consent of Securityholders...................... 47
iii
<PAGE>
SECTION 9.3. Compliance with Trust Indenture Act; Effect
of Supplemental Indentures........................... 48
SECTION 9.4. Notation on Securities............................... 49
SECTION 9.5. Evidence of Compliance of Supplemental Indenture
to be Furnished to the Trustee....................... 49
ARTICLE X - CONSOLIDATION, MERGER, SALE, CONVEYANCE
AND LEASE.................................................... 49
SECTION 10.1. Company May Consolidate, Etc., on Certain Terms.... 49
SECTION 10.2. Successor Corporation to be Substituted for Company 50
SECTION 10.3. Opinion of Counsel to be Received by Trustee....... 50
ARTICLE XI - SATISFACTION AND DISCHARGE OF INDENTURE....................... 51
SECTION 11.1. Discharge of Indenture............................. 51
SECTION 11.2. Deposited Moneys and U.S. Government Obligations
to be Held in Trust by Trustee..................... 51
SECTION 11.3. Paying Agent to Repay Moneys Held.................. 52
SECTION 11.4. Return of Unclaimed Moneys......................... 52
SECTION 11.5. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations........................................ 52
ARTICLE XII - IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS...................................... 54
SECTION 12.1. Indenture and Securities Solely Corporate
Obligations........................................ 54
ARTICLE XIII - MISCELLANEOUS PROVISIONS.................................... 54
SECTION 13.1. Successors......................................... 54
SECTION 13.2. Official Acts by Successor Corporation............. 54
SECTION 13.3. Surrender of Company Powers........................ 54
SECTION 13.4. Addresses for Notices, Etc......................... 55
SECTION 13.5. Governing Law...................................... 55
SECTION 13.6. Evidence of Compliance with Conditions Precedent... 55
SECTION 13.7. Business Days...................................... 56
SECTION 13.8. Trust Indenture Act to Control..................... 56
SECTION 13.9. Table of Contents, Headings, Etc................... 56
SECTION 13.10. Execution in Counterparts.......................... 56
SECTION 13.11. Separability....................................... 56
SECTION 13.12. Assignment......................................... 57
SECTION 13.13. Acknowledgment of Rights........................... 57
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ARTICLE XIV - PREPAYMENT OF SECURITIES -- MANDATORY AND
OPTIONAL SINKING FUND...................................... 57
SECTION 14.1. Special Event Repayment............................ 57
SECTION 14.2. Optional Prepayment by Company..................... 58
SECTION 14.3. No Sinking Fund.................................... 58
SECTION 14.4. Notice of Prepayment; Selection of Securities...... 58
SECTION 14.5. Payment of Securities Called for Prepayment........ 59
ARTICLE XV - SUBORDINATION OF SECURITIES................................... 60
SECTION 15.1. Agreement to Subordinate........................... 60
SECTION 15.2. Default on Senior Indebtedness..................... 60
SECTION 15.3. Liquidation; Dissolution; Bankruptcy............... 61
SECTION 15.4. Subrogation........................................ 62
SECTION 15.5. Trustee to Effectuate Subordination................ 63
SECTION 15.6. Notice by the Company.............................. 63
SECTION 15.7. Rights of the Trustee; Holders of Senior
Indebtedness....................................... 64
SECTION 15.8. Subordination May Not Be Impaired.................. 65
ARTICLE XVI - EXTENSION OF INTEREST PAYMENT PERIOD......................... 65
SECTION 16.1. Extension of Interest Payment Period............... 65
SECTION 16.2. Notice of Extension................................ 66
ARTICLE XVII - CONVERSION OF SECURITIES.................................... 67
SECTION 17.1. Conversion Rights.................................. 67
SECTION 17.2. Conversion Procedures.............................. 67
SECTION 17.3. Conversion Price Adjustments....................... 70
SECTION 17.4. Reclassification, Consolidation, Merger or Sale
of Assets.......................................... 74
SECTION 17.5. Notice of Adjustments of Conversion Price.......... 74
SECTION 17.6. Prior Notice of Certain Events..................... 75
SECTION 17.7. Certain Defined Terms.............................. 76
SECTION 17.8. Dividend or Interest Reinvestment Plans............ 76
SECTION 17.9. Certain Additional Rights.......................... 77
SECTION 17.10. Trustee Not Responsible for Determining
Conversion Price or Adjustments.................... 77
SECTION 17.11. Expiration of Conversion Rights.................... 78
v
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THIS INDENTURE, dated as of ________, 1997, between NEW YORK BANCORP INC.,
a Delaware corporation (hereinafter sometimes called the "Company"), and THE
BANK OF NEW YORK, a New York banking corporation, as trustee (hereinafter
sometimes called the "Trustee"),
W I T N E S S E T H :
In consideration of the premises, and the purchase of the Securities by
the holders thereof, the Company covenants and agrees with the Trustee for the
equal and proportionate benefit of the respective holders from time to time of
the Securities, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
The terms defined in this Section 1.1 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture shall have the respective meanings specified in this Section 1.1.
All other terms used in this Indenture which are defined in the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), or which are by reference
therein defined in the Securities Act, shall (except as herein otherwise
expressly provided or unless the context otherwise requires) have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act as
in force at the date of this Indenture as originally executed. The following
terms have the meanings given to them in the Declaration: (i) Clearing Agency;
(ii) Delaware Trustee; (iii) Property Trustee; (iv) Administrator; (v) Direct
Action; (vi) Underwriting Agreement; (vii) Public Offering; (viii) Subscription
Offering; (ix) Distribution and (x) Conversion Termination Date. All accounting
terms used herein and not expressly defined shall have the meanings assigned to
such terms in accordance with generally accepted accounting principles and the
term "generally accepted accounting principles" means such accounting principles
as are generally accepted at the time of any computation. The words "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision. Headings are used for convenience of reference only and do not
affect interpretation. The singular includes the plural and vice versa.
"Additional Interest" shall have the meaning set forth in Section 2.5(c).
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding the power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
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directly or indirectly controlling, controlled by, or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any officer or director of the specified Person, and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
"Allocable Amounts," when used with respect to any Senior Indebtedness,
means all amounts due or to become due on such Senior Indebtedness less, if
applicable, any amount which would have been paid to, and retained by, the
holders of such Senior Indebtedness (whether as a result of the receipt of
payments by the holders of such Senior Indebtedness from the Company or any
other obligor thereon or from any holders of, or trustee in respect of, other
indebtedness that is subordinate and junior in right of payment to such Senior
Indebtedness pursuant to any provision of such indebtedness for the payment over
of amounts received on account of such indebtedness to the holders of such
Senior Indebtedness or otherwise) but for the fact that such Senior Indebtedness
is subordinate or junior in right of payment to (or subject to a requirement
that amounts received on such Senior Indebtedness be paid over to obligees on)
trade accounts payable or accrued liabilities arising in the ordinary course of
business.
"Authenticating Agent" shall mean any agent or agents of the Trustee which
at the time shall be appointed and acting pursuant to Section 6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
"Board of Directors" shall mean either the Board of Directors of the
Company or any duly authorized committee of that board.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" shall mean, with respect to any series of Securities, any
day other than a Saturday or a Sunday or a day on which banking institutions in
The City of New York or Douglaston, New York are authorized or required by law
or executive order to close.
"Capital Securities" shall mean preferred undivided beneficial interests
in the assets of NYB Trust which rank pari passu with the Common Securities
issued by NYB Trust; provided, however, that if an Event of Default has occurred
and is continuing, no payments in respect of Distributions on, or payments upon
liquidation, redemption or otherwise with respect to, the Common Securities
shall be made until the holders of the Capital Securities shall be paid in full
the Distributions and the liquidation, redemption and other payments to which
they are entitled.
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"Capital Securities Guarantee" shall mean any guarantee that the Company
may enter into with The Bank of New York or other Persons that operates directly
or indirectly for the benefit of holders of Capital Securities.
"Commission" shall mean the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities" shall mean undivided beneficial interests in the
assets of NYB Trust which rank pari passu with Capital Securities issued by NYB
Trust; provided, however, that if an Event of Default has occurred and is
continuing, no payments in respect of Distributions on, or payments upon
liquidation, redemption or otherwise with respect to, the Common Securities
shall be made until the holders of the Capital Securities shall be paid in full
the Distributions and the liquidation, redemption and other payments to which
they are entitled.
"Common Securities Guarantee" shall mean any guarantee of the Company that
operates directly or indirectly for the benefit of holders of Common Securities.
"Common Stock" shall mean the common stock, par value $0.01 per share, of
the Company or any other class of stock resulting from changes or
reclassifications of such common stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
"Company" shall mean New York Bancorp Inc., a Delaware corporation, and,
subject to the provisions of Article X, shall include its successors and
assigns.
"Company Request" or "Company Order" shall mean a written request or order
signed in the name of the Company by the Chairman, the Chief Executive Officer,
the President, a Vice Chairman, a Vice President, the Comptroller, the Secretary
or an Assistant Secretary of the Company, and delivered to the Trustee.
"Compounded Interest" shall have the meaning set forth in Section 16.1.
"Conversion Agent" means the Person appointed to act on behalf of the
holders of Capital Securities in effecting the conversion of Capital Securities
to Securities and Securities to Common Stock as and in the manner set forth in
the Declaration and in this Indenture.
"Conversion Request" means (a) the irrevocable request to be given by a
holder of Securities to the Conversion Agent directing the Conversion Agent to
convert such Security into shares of Common Stock and (b) the irrevocable
request to be given by a holder of Capital Securities to the Conversion Agent
directing the Conversion Agent to exchange such Capital
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Securities for Securities and to convert such Securities into Common Stock on
behalf of such holder.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Custodian" shall mean any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Declaration" means the Amended and Restated Declaration of Trust of NYB
Trust, dated as of the Issue Date.
"Default" means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of Default.
"Deferred Interest" shall have the meaning set forth in Section 16.1.
"Definitive Securities" shall mean those securities issued in fully
registered certificated form not otherwise in global form.
"Depositary" shall mean, with respect to Securities of any series, for
which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to Section 2.5(d).
"Dissolution Event" means the liquidation of the New York Bancorp Capital
Trust pursuant to the Declaration, and the distribution of the Securities held
by the Property Trustee to the holders of the Trust Securities issued by the NYB
Trust pro rata in accordance with the Declaration.
"Event of Default" shall mean any event specified in Section 5.1,
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 16.1.
"Federal Reserve" shall mean the Board of Governors of the Federal Reserve
System.
"Global Security" means, with respect to the Securities, a Security
executed by the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary's
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instruction, all in accordance with the Indenture, which shall be registered in
the name of the Depositary or its nominee.
"Indebtedness for Money Borrowed" shall mean (i) any obligation of, or any
obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments and any deferred obligation for the payment of the purchase price of
property or assets acquired other than in the ordinary course of business, and
(ii) all indebtedness of the Company for claims in respect of derivative
products such as interest and foreign exchange rate contracts, commodity
contracts and similar arrangements, whether outstanding on the date of execution
of the Indenture or thereafter created, assumed or incurred. For purposes of
this definition, "claim" shall have the meaning assigned in Section 101(5) of
the Bankruptcy Code of 1978, as amended and in effect on the date of the
execution of this Indenture.
"Indebtedness Ranking Junior to the Securities" shall mean any
Indebtedness for Money Borrowed, whether outstanding on the date of execution of
this Indenture or hereafter created, assumed or incurred, which specifically by
its terms ranks junior to and not equally with or prior to the Securities (and
any other Indebtedness Ranking on a Parity with the Securities) in right of
payment upon the happening of any dissolution or winding up or liquidation or
reorganization of the Company. The securing of any Indebtedness for Money
Borrowed of the Company, otherwise constituting Indebtedness Ranking Junior to
the Securities, shall not be deemed to prevent such Indebtedness for Money
Borrowed from constituting Indebtedness Ranking Junior to the Securities.
"Indebtedness Ranking on a Parity with the Securities" shall mean
Indebtedness for Money Borrowed, whether outstanding on the date of execution of
this Indenture or hereafter created, assumed or incurred, which specifically by
its terms ranks equally with and not prior to the Securities in the right of
payment upon the happening of any dissolution or winding up or liquidation or
reorganization of the Company. The securing of any Indebtedness for Money
Borrowed of the Company, otherwise constituting Indebtedness Ranking on a Parity
with the Securities, shall not be deemed to prevent such Indebtedness for Money
Borrowed from constituting Indebtedness Ranking on a Parity with the Securities.
"Indenture" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented.
"Initial Optional Prepayment Date" means October 31, 2001.
"Interest Payment Date" shall have the meaning set forth in Section 2.6.
"Investment Company Event" means the receipt by the Company and NYB Trust
of an opinion of Weil, Gotshal & Manges LLP or any other nationally recognized
counsel experienced in such matters, to the effect that (a) as a result of any
amendment to, or change
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(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any political subdivision or authority
thereof or therein 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, there is more than an insubstantial risk that NYB Trust is or
within 90 days will be considered an "investment company" that is required to be
registered under the Investment Company Act of 1940, as amended.
"Issue Date" means _______, 1997.
"Maturity Date" shall mean October 31, 2027.
"Non Book-Entry Capital Securities" shall have the meaning set forth in
Section 2.5.
"NYB Trust" shall mean New York Bancorp Capital Trust, a Delaware business
trust created for the purpose of issuing its undivided beneficial interests in
connection with the issuance of Securities under this Indenture.
"Officers" shall mean any of the Chairman, the Co-Chairman, a Vice
Chairman, the Chief Executive Officer, the President, a Vice President, the
Comptroller, the Secretary or an Assistant Secretary of the Company.
"Officers' Certificate" shall mean a certificate signed by two Officers
and delivered to the Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel, who may be
an employee of the Company, and who shall be acceptable to the Trustee.
"Optional Prepayment Price" shall have the meaning set forth in Section
14.2.
"Other Debentures" means all junior subordinated debentures issued by the
Company from time to time and sold to trusts to be established by the Company
(if any), in each case similar to the NYB Trust.
"Other Guarantees" means all guarantees issued by the Company with respect
to capital securities (if any) and issued to other trusts established by the
Company (if any), in each case similar to the NYB Trust.
The term "outstanding" when used with reference to Securities, shall,
subject to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee or the Authenticating
Agent under this Indenture, except
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(a) Securities theretofore cancelled by the Trustee or the Authenticating
Agent or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or prepayment of
which moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own paying agent); provided that, if such Securities, or portions thereof, are
to be prepaid prior to maturity thereof, notice of such prepayment shall have
been given as in Article XIV provided or provision satisfactory to the Trustee
shall have been made for giving such notice; and
(c) Securities in lieu of or in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Section 2.7
unless proof satisfactory to the Company and the Trustee is presented that any
such Securities are held by bona fide holders in due course.
"Person" shall mean any individual, corporation, estate, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt and as that evidenced by
such particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.7 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Prepayment Date" when used with respect to any Security to be prepaid,
means the date fixed for such prepayment by or pursuant to this Indenture.
"Prepayment Price" means the Special Event Prepayment Price or the
Optional Prepayment Price, as the context requires.
"Principal Office of the Trustee", or other similar term, shall mean the
office of the Trustee, at which at any particular time its corporate trust
business shall be principally administered.
"Property Trustee" shall have the same meaning as set forth in the
Declaration.
"Regulatory Capital Event" means the receipt by the Company and the NYB
Trust of an opinion of Weil, Gotshal & Manges LLP or any other 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 Office of Thrift Supervision, the
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Federal Reserve or any other federal bank regulatory agency 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, (i) the
Company is or within 90 days will be subject to capital adequacy requirements
and such requirements do not or will not permit the Capital Securities to
constitute, subject to limitations on inclusion of the Capital Securities as
Tier 1 capital by the Federal Reserve capital guidelines in effect as of the
date of the prospectus used in connection with the offering and sale of the
Capital Securities, Tier 1 capital (or its then-equivalent) or (ii) the amount
of net proceeds received from the sale of the Capital Securities and contributed
by the Company to its subsidiary, Home Federal Savings Bank, does not or within
90 days will not constitute Tier 1 (core) capital (or its then-equivalent).
"Responsible Officer", when used with respect to the Trustee, shall mean
any vice president, any assistant secretary, any assistant treasurer or senior
trust officer, any trust officer or assistant trust officer, or any other
officer or assistant officer of the Principal Office of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Sales Agent" shall mean Beacon Hill Partners, Inc., as sales agent in the
Subscription Offering.
"Securities" means the Company's 8.00% Junior Subordinated Convertible
Debentures due October 31, 2027, as authenticated and issued under this
Indenture.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Security Register" shall mean (i) prior to a Dissolution Event, the list
of holders provided to the Trustee pursuant to Section 4.1, and (ii) following a
Dissolution Event, any security register maintained by a security registrar for
the Securities appointed by the Company following the execution of a
supplemental indenture providing for transfer procedures as provided for in
Section 2.6(a).
"Securityholder", "holder of Securities", or other similar terms, shall
mean any person in whose name at the time a particular Security is registered on
the register kept by the Company or the Trustee for that purpose in accordance
with the terms hereof.
"Senior Indebtedness" shall mean all Indebtedness for Money Borrowed,
whether outstanding on the date of execution of this Indenture or thereafter
created, assumed or incurred, except Indebtedness Ranking on a Parity with the
Securities or Indebtedness Ranking Junior to the Securities, and any deferrals,
renewals or extensions of such Senior Indebtedness.
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"Special Event" means a Tax Event, Regulatory Capital Event or an
Investment Company Event, as the case may be.
"Special Event Prepayment Price" shall mean, with respect to any
prepayment of the Securities pursuant to Section 14.1 hereof, an amount in cash
equal to 100% of the principal amount to be prepaid plus any accrued and unpaid
interest thereon, including Compounded Interest and Additional Interest, if any,
to the date of such redemption.
"Subsidiary" shall mean with respect to any Person, (i) any corporation at
least a majority of whose outstanding voting stock is owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries, (ii) any general partnership, joint
venture or similar entity, at least a majority of whose outstanding partnership
or similar interests shall at the time be owned by such Person, or by one or
more of its Subsidiaries, or by such Person and one or more of its Subsidiaries
and (iii) any limited partnership of which such Person or any of its
Subsidiaries is a general partner. For the purposes of this definition, "voting
stock" means shares, interests, participations or other equivalents in the
equity interest (however designated) in such Person having ordinary voting power
for the election of a majority of the directors (or the equivalent) of such
Person, other than shares, interests, participations or other equivalents having
such power only by reason of the occurrence of a contingency.
"Tax Event" means (a) the receipt by the Company and the NYB Trust of an
opinion of Weil, Gotshal & Manges LLP of any other nationally recognized tax
counsel experienced in such matters, to the effect that as a result of (i) any
amendment to, clarification of, or change (including any announced prospective
change) in, the laws or any regulations thereunder of the United States or any
political subdivision or taxing authority thereof or therein, (ii) any amendment
to, clarification of, or change in, an interpretation or application of any such
laws or regulations by any legislative body, court, governmental agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination or the
publication of an explanation of legislation by the staff of the Joint Committee
on Taxation), (iii) any interpretation or pronouncement that provides for a
position with respect to such laws or regulations that differs from the
theretofore generally accepted position or (iv) any judicial decision,
administrative pronouncement, ruling, regulatory procedure, notice, announcement
(including any notice or announcement of intent to adopt procedures or
regulations) or any other actions taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
announced or which interpretation or pronouncement is issued or announced or
which action is taken, in each case, on or after the Issue Date, there is more
than an insubstantial risk that (x) the NYB Trust is or within 90 days will be
subject to United States federal income tax with respect to income received or
accrued on the Securities, (y) interest payable by the Company on the Securities
is not or within 90 days will not be deductible by the Company, in whole or in
part, for United States federal income tax purposes, or (z) the NYB Trust is or
within 90 days will be subject to more than a de minimis amount of other taxes,
duties or other
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governmental charges, or (b) a proposed audit adjustment by a taxing authority
which, if sustained, would result in any of the events described in clauses (x),
(y) or (z) above (without regard to the 90 day period referred to therein).
"Trust Indenture Act of 1939" shall mean the Trust Indenture Act of 1939
as in force at the date of execution of this Indenture, except as provided in
Section 9.3.
"Trust Securities" shall mean the Capital Securities and the Common
Securities, collectively.
"Trustee" shall mean the Person identified as "Trustee" in the first
paragraph hereof, and, subject to the provisions of Article VI hereof, shall
also include its successors and assigns as Trustee hereunder. The term "Trustee"
as used with respect to a particular series of the Securities shall mean the
trustee with respect to that series.
"Underwriter" shall mean Keefe, Bruyette & Woods, Inc., as underwriter in
the Public Offering.
"U.S. Government Obligations" shall mean securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
ARTICLE II
SECURITIES
SECTION 2.1. Forms Generally.
The Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A, the terms of which are incorporated in
and made a part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange
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rule, agreements to which the Company is subject or usage. Each Security shall
be dated the date of its authentication.
SECTION 2.2. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature in the manner set forth in Exhibit A. If an Officer whose
signature is on a Security no longer holds that office at the time the Security
is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature
of an authorized signatory of the Trustee. The signature of the Trustee shall be
conclusive evidence that the Security has been authenticated under this
Indenture. The form of Trustee's certificate of authentication to be borne by
the Securities shall be substantially as set forth in Exhibit A hereto.
The Trustee shall, upon a Company Order, authenticate for original issue
up to, and the aggregate principal amount of Securities outstanding at any time
may not exceed, $51,500,000 aggregate principal amount of the Securities, except
as provided in Sections 2.6, 2.7, 2.9 and 14.5.
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Securities shall be issued in fully
registered certificated form without interest coupons. Principal of, premium, if
any, and interest on the Securities issued in certificated form will be payable,
the transfer of such Securities will be registrable and such Securities will be
exchangeable for Securities bearing identical terms and provisions at the office
or agency of the Company maintained for such purpose under Section 3.2;
provided, however, that payment of interest with respect to the Securities may
be made at the option of the Company (i) by check mailed to the holder entitled
thereto at such address as shall appear in the Security Register or (ii) by wire
transfer to an account maintained by the Person entitled thereto, provided that
proper wire transfer instructions have been received in writing by the paying
agent by the relevant record date. Notwithstanding the foregoing, so long as the
holder of any Securities is the Property Trustee, the payment of the principal
of, premium, if any, and interest (including Compounded Interest and Additional
Interest, if any) on such Securities held by the Property Trustee will be made
at such place and to such account as may be designated by the Property Trustee.
SECTION 2.4. Global Security.
(a) In connection with a Dissolution Event,
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(i) if any Capital Securities are held in book-entry form, the
related Definitive Securities shall be presented to the Trustee (if an
arrangement with the Depositary has been maintained) by the Property
Trustee in exchange for one or more Global Securities (as may be required
pursuant to Section 2.6) in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Securities, to be registered
in the name of the Depositary, or its nominee, and delivered by the
Trustee to the Depositary for crediting to the accounts of its
participants pursuant to the instructions of the Administrators; the
Company upon any such presentation shall execute one or more Global
Securities in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with this Indenture;
and payments on the Securities issued as a Global Security will be made to
the Depositary; and
(ii) if any Capital Securities are held in certificated form, the
related Definitive Securities may be presented to the Trustee by the
Property Trustee and any Capital Security certificate which represents
Capital Securities other than Capital Securities in book-entry form ("Non
Book-Entry Capital Securities") will be deemed to represent beneficial
interests in Securities presented to the Trustee by the Property Trustee
having an aggregate principal amount equal to the aggregate liquidation
amount of the Non Book-Entry Capital Securities until such Capital
Security certificates are presented to the Security Registrar for transfer
or reissuance, at which time such Capital Security certificates will be
cancelled and a Security, registered in the name of the holder of the
Capital Security certificate or the transferee of the holder of such
Capital Security certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the Capital
Security certificate cancelled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance
with the Indenture. Upon the issuance of such Securities, Securities with
an equivalent aggregate principal amount that were presented by the
Property Trustee to the Trustee will be deemed to have been cancelled.
(b) The Global Securities shall represent the aggregate amount of
outstanding Securities from time to time endorsed thereon; provided, that the
aggregate amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges, conversions
and prepayments. Any endorsement of a Global Security to reflect the amount of
any increase or decrease in the amount of outstanding Securities represented
thereby shall be made by the Trustee, in accordance with instructions given by
the Company as required by this Section 2.4.
(c) The Global Securities may be transferred, in whole but not in part,
only to the Depositary, another nominee of the Depositary, or to a successor
Depositary selected or approved by the Company or to a nominee of such successor
Depositary.
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(d) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or the Depositary has ceased to be
a clearing agency registered under the Exchange Act, and a successor Depositary
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, the Company will
execute, and the Trustee, upon written notice from the Company, will
authenticate and make available for delivery the Definitive Securities, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security in exchange for such Global Security. If
there is an Event of Default, the Depositary shall have the right to exchange
the Global Securities for Definitive Securities. In addition, the Company may at
any time determine that the Securities shall no longer be represented by a
Global Security. In the event of such an Event of Default or such a
determination, the Company shall execute, and subject to Section 2.6, the
Trustee, upon receipt of an Officers' Certificate evidencing such determination
by the Company, will authenticate and make available for delivery the Definitive
Securities, in an aggregate principal amount equal to the principal amount of
the Global Security in exchange for such Global Security. Upon the exchange of
the Global Security for such Definitive Securities, the Global Security shall be
cancelled by the Trustee. Such Definitive Securities issued in exchange for the
Global Security shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Definitive Securities to the Depositary for delivery to the
Persons in whose names such Definitive Securities are so registered.
SECTION 2.5. Interest.
(a) Each Security will bear interest at the rate of 8.00% per annum (the
"Coupon Rate") from the most recent date to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for, from the
Issue Date, until the principal thereof becomes due and payable, and at the
Coupon Rate on any overdue principal (and premium, if any) and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest, compounded quarterly, payable (subject to the
provisions of Article XVI) quarterly, in arrears on January 31, April 30, July
31 and October 31 of each year (each, an "Interest Payment Date") commencing on
January 31, 1998, to the Person in whose name such Security or any predecessor
Security is registered, at the close of business on the regular record date for
such interest installment, which shall be the fifteenth day of the month
in which the relevant Interest Payment Date falls.
(b) Interest will be computed on the basis of a 360-day year consisting of
twelve 30- day months and, for any period of less than a full calendar month,
the number of days lapsed in such month. In the event that any Interest Payment
Date falls on a day that is not a Business Day, then payment of 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 such date.
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(c) During such time as the Property Trustee is the holder of any
Securities, the Company shall pay any additional amounts on the Securities as
may be necessary in order that the amount of Distributions then due and payable
by the NYB Trust shall not be reduced as a result of any additional taxes,
duties and other governmental charges to which the NYB Trust has become subject
as a result of a Tax Event ("Additional Interest").
SECTION 2.6. Transfer and Exchange.
(a) General Provisions Relating to Transfers and Exchanges. Upon surrender
for registration of transfer of any Security at the office or agency of the
Company maintained for the purpose pursuant to Section 3.2, the Company shall
execute, and the Trustee shall authenticate and make available for delivery, in
the name of the designated transferee or transferees, one or more new Securities
of the same series of a like aggregate principal amount.
At the option of the holder, Securities may be exchanged for other
Securities of the same series of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at the office or agency identified
above. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the holder making the exchange is entitled to
receive.
Every Security presented or surrendered for registration of transfer or
exchange (if so required by the Company or the Trustee) shall be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security registrar duly executed by the holder thereof or
such holder's attorney duly authorized in writing.
All Definitive Securities and Global Securities issued upon any
registration of transfer or exchange of Definitive Securities or Global
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Definitive
Securities or Global Securities surrendered upon such registration of transfer
or exchange.
No service charge shall be made to a holder for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith.
The Company shall not be required to (i) issue, register the transfer of
or exchange Securities during a period beginning at the opening of business 15
days before the day of mailing of a notice of prepayment or any notice of
selection of Securities for prepayment under Article XIV hereof and ending at
the close of business on the day of such mailing; or (ii) register the transfer
of or exchange any Security so selected for prepayment in whole or in part,
except the portion of any Security being prepaid in part.
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SECTION 2.7. Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or the Company
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Security, the Company shall issue and the Trustee shall
authenticate a replacement Security if the Trustee's requirements for
replacements of Securities are met. At the request of the Trustee or the
Company, an indemnity bond may be required from the holder that is sufficient in
the judgment of the Trustee and the Company to protect the Company, the Trustee,
any agent thereof or any Authenticating Agent from any loss that any of them may
suffer if a Security is replaced. The Company or the Trustee may charge for its
expenses in replacing a Security.
Every replacement Security is an obligation of the Company and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with 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 of
mutilated, destroyed, lost or stolen Securities.
SECTION 2.8. [Intentionally Omitted]
SECTION 2.9. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute,
and upon Company Order the Trustee shall authenticate and make available for
delivery, temporary Securities that are printed, lithographed, typewritten,
mimeographed or otherwise reproduced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company shall cause definitive
Securities to be prepared without unreasonable delay. The definitive Securities
shall be printed, lithographed or engraved, or provided by any combination
thereof, or in any other manner permitted by the rules and regulations of any
applicable securities exchange, all as determined by the officers executing such
definitive Securities. 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 maintained by the
Company for such purpose pursuant to Section 3.2 hereof, without charge to the
holder. Upon surrender for cancellation of any one or more temporary Securities,
the Company shall execute, and the Trustee shall authenticate and make available
for delivery, in exchange therefor the same aggregate principal amount of
definitive Securities of authorized denominations. Until so exchanged, the
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temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 2.10. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Trustee and no one else shall cancel all Securities
surrendered for registration of transfer, exchange, payment, conversion,
replacement or cancellation and shall retain or dispose of cancelled Securities
in accordance with its normal practices (subject to the record retention
requirement of the Exchange Act) unless the Company directs them to be returned
to it; provided, that the Trustee shll not be required to destroy such cancelled
Securities. Subject to the other provisions of the Indenture, the Company may
not issue new Securities to replace Securities that have been paid (at maturity
or upon prepayment) or that have been delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest.
Any interest on any Security that is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the holder on the relevant
regular record date by virtue of having been such holder; and such Defaulted
Interest shall be paid by the Company, at its election, as provided in clause
(a) or clause (b) below:
(a) The Company may make payment of any Defaulted Interest on Securities
to the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered at the close of business on a special record date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner: the Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such 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 nor 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 Defaulted Interest
and the special record date therefor to be mailed, first class postage prepaid,
to each Securityholder at his or her address as it appears in the Security
Register, not less than 10 days prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Securities (or their
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respective Predecessor Securities) are registered on such special record date
and shall be no longer payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
SECTION 2.12. 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 prepayment 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 Securities or as contained in any notice of prepayment
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such prepayment shall not be affected by any defect
in or omission of such numbers. The Company will promptly notify the Trustee of
any change in the CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the holders of the
Securities that it will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest on the Securities at the place,
at the respective times and in the manner provided herein. Except as provided in
Section 2.3, each installment of interest on the Securities may be paid by
mailing checks for such interest payable to the order of the holder of Security
entitled thereto as they appear in the Security Register.
SECTION 3.2. Offices for Notices and Payments, Etc.
So long as any of the Securities remain outstanding, the Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where the Securities may be presented for payment, an office or agency where the
Securities may be presented for registration of transfer and for exchange as in
this Indenture provided and an office or agency where notices and demands to or
upon the Company in respect of the Securities or of this Indenture may be
served. The Company will give to the Trustee written notice of the location of
any such office or agency and of any change of location thereof. Until otherwise
designated from time to time by the Company in a notice to the Trustee, any such
office or agency for all
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of the above purposes shall be the Principal Office of the Trustee. In case the
Company shall fail to maintain any such office or agency in the Borough of
Manhattan, The City of New York, or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands may
be made and notices may be served at the Principal Office of the Trustee.
In addition to any such office or agency, the Company may from time to
time designate one or more offices or agencies outside the Borough of Manhattan,
The City of New York, where the Securities may be presented for payment,
registration of transfer and for exchange or conversion in the manner provided
in this Indenture, and the Company may from time to time rescind such
designation, as the Company may deem desirable or expedient; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain any such office or agency in the Borough of
Manhattan, The City of New York, for the purposes above mentioned. The Company
will give to the Trustee prompt written notice of any such designation or
rescission thereof.
SECTION 3.3. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that at all times there shall be a Trustee hereunder.
SECTION 3.4. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the Trustee
with respect to the Securities, it will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provision of this Section 3.4,
(1) that it will hold all sums held by it as such agent for the
payment of the principal of and premium, if any, or interest on the Securities
(whether such sums have been paid to it by the Company or by any other obligor
on the Securities of such series) in trust for the benefit of the holders of the
Securities;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities) to make any payment of the
principal of and premium or interest on the Securities when the same shall be
due and payable; and
(3) that it will at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by it as such paying agent.
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(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of and premium, if any, or interest on the
Securities, set aside, segregate and hold in trust for the benefit of the
holders of the Securities a sum sufficient to pay such principal, premium or
interest so becoming due and will notify the Trustee of its action or any
failure to take such action and of any failure by the Company (or by any other
obligor under the Securities) to make any payment of the principal of and
premium, if any, or interest on the Securities when the same shall become due
and payable.
Whenever the Company shall have one or more paying agents, it will,
on or prior to each due date of the principal of and premium, if any, or
interest on any Securities, deposit with a paying agent a sum sufficient to pay
the principal of and premium, if any, or interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled thereto, and (unless
such paying agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure to act.
(c) Anything in this Section 3.4 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to the Securities hereunder, or for any other reason, pay
or cause to be paid to the Trustee all sums held in trust for any such
Securities by the Trustee or any paying agent hereunder, as required by this
Section 3.4, such sums to be held by the Trustee upon the trusts herein
contained.
(d) Anything in this Section 3.4 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 3.4 is subject to
Sections 11.3 and 11.4.
SECTION 3.5. Certificate to Trustee.
The Company will deliver to the Trustee on or before 120 days after the
end of each fiscal year in each year, commencing with the first fiscal year
ending after the date hereof, so long as Securities are outstanding hereunder,
an Officers' Certificate, one of the signers of which shall be the principal
executive, principal financial or principal accounting officer of the Company
stating that in the course of the performance by the signers of their duties as
officers of the Company they would normally have knowledge of any default by the
Company in the performance of any covenants contained herein, stating whether or
not they have knowledge of any such default and, if so, specifying each such
default of which the signers have knowledge and the nature thereof.
SECTION 3.6. Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other Person unless the provisions of
Article X hereof are complied with.
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SECTION 3.7. Limitation on Dividends.
If at any time (i) an Event of Default shall have occurred and be
continuing (other than solely an Event of Default under Section 5.1(c) hereof),
(ii) there shall have occurred any event of which the Company has actual
knowledge that (a) is, or with the giving of notice or the lapse of time, or
both, would constitute an Event of Default (other than solely an Event of
Default under Section 5.1(c) hereof) and (b) in respect of which the Company
shall not have taken reasonable steps to cure, (iii) if the Securities are held
by the Property Trustee, the Company shall be in default with respect to its
payment obligations under the Capital Securities Guarantee or (iv) the Company
shall have given notice of its election of the exercise of its right to extend
the interest payment period pursuant to Section 16.1 and has not rescinded such
notice and any such extension shall have commenced, then, in each such case, 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 or (ii) make any payment of principal, interest or
premium, if any, on or repay or repurchase or redeem any debt securities of the
Company (including any Other Debentures) that rank pari passu with or junior in
right of payment to the Securities or (iii) make any guarantee payments with
respect to any guarantee by the Company of any securities of any Subsidiary of
the Company (including Other Guarantees) if such guarantee ranks pari passu or
junior in right of payment to the Securities, other than (a) dividends or
distributions in shares of, or options, warrants or rights to subscribe for or
purchase shares of, Common Stock or preferred stock of the Company; (b) any
declaration of a dividend in connection with the implementation of a
stockholder's 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 Capital Securities Guarantee; (d) as a direct result of, and
only to the extent required in order to avoid the issuance of fractional shares
of capital stock following a reclassification of the Company's capital stock or
the exchange or the conversion of one class or series of the Company's capital
stock for another class or series of the Company's capital stock; (e) 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; and (f) purchases of Common Stock related
to the issuance of Common Stock or rights under any of the Company's benefit
plans for its directors, officers or employees or any of the Company's dividend
reinvestment plans.
SECTION 3.8. Covenants as to NYB Trust.
In the event Securities are issued to NYB Trust or a trustee of such trust
in connection with the issuance of Trust Securities by NYB Trust, for so long as
such Trust Securities remain outstanding, the Company will (i) maintain 100%
direct ownership of the Common Securities of NYB Trust; provided, however, that
any successor of the Company, permitted pursuant to Article X, may succeed to
the Company's ownership of such Common Securities, (ii) use its reasonable
efforts to cause NYB Trust (a) to remain a business trust, except in connection
with a distribution of Securities, the redemption of all of the Trust Securities
of
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NYB Trust or certain mergers, consolidations or amalgamations, each as permitted
by the Declaration of NYB Trust, and (b) to otherwise continue not to be treated
as an association taxable as a corporation or partnership for United States
federal income tax purposes and (iii) to use its reasonable efforts to cause
each holder of Trust Securities to be treated as owning an individual beneficial
interest in the Securities.
SECTION 3.9. Payment of Expenses.
In connection with the offering, sale and issuance of the Securities to
NYB Trust and in connection with the sale of the Trust Securities by NYB Trust,
the Company, in its capacity as borrower with respect to the Securities, shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Securities, including fees to the Sales Agent and Underwriter payable in
connection with the Subscription Offering and the Public Offering, if any, and
compensation of the Trustee in accordance with the provisions of Section 6.6;
(b) pay all costs and expenses of the NYB Trust (including, but not
limited to, costs and expenses relating to the organization of NYB Trust, the
offering, sale and issuance of the Trust Securities (including fees to the Sales
Agent and Underwriter in connection therewith), the fees and expenses of the
Property Trustee and the Delaware Trustee, the costs and expenses relating to
the operation of NYB Trust, including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), conversion agent(s), duplicating, travel and
telephone and other telecommunications expenses and costs and expenses incurred
in connection with the acquisition, financing and disposition of assets of the
NYB Trust;
(c) be primarily and fully liable for any indemnification obligations
arising with respect to the Declaration;
(d) pay any and all taxes (other than United States withholding taxes
attributable to NYB Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of NYB Trust; and
(e) pay all other fees, expenses, debts and obligations (other than
payments of principal of, premium, if any, or interest on the Trust Securities)
related to NYB Trust.
SECTION 3.10. Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or resignation of the
Trustee, unless otherwise stated, the Company shall pay to the Trustee all
amounts accrued and owing to the date of such termination, removal or
resignation. Upon termination of the Declaration or the
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removal or resignation of the Delaware Trustee or the Property Trustee, as the
case may be, pursuant to Section 5.6 of the Declaration, the Company shall pay
to the Delaware Trustee or the Property Trustee, as the case may be, all amounts
accrued and owing to the date of such termination, removal or resignation.
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.1. Securityholders' Lists.
The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee:
(a) on a quarterly basis on each regular record date for the Securities in
connection with the payment of interest thereon, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the
Securityholders as of such record date; 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,
except that, no such lists need be furnished so long as the Trustee is in
possession thereof by reason of its acting as Security registrar.
SECTION 4.2. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of the
Securities (1) contained in the most recent list furnished to it as provided in
Section 4.1 or (2) received by it in the capacity of Securities registrar (if so
acting) hereunder. The Trustee may destroy any list furnished to it as provided
in Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more holders of Securities (hereinafter referred to
as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other holders of
Securities or with holders of all Securities with respect to their rights under
this Indenture and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall
within 5 Business Days after the receipt of such application, at its election,
either:
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(1) afford such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a) of
this Section 4.2, or
(2) inform such applicants as to the approximate number of holders
of all Securities, whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 4.2, and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee, upon the written request of such applicants, shall
mail to each Securityholder whose name and address appear in the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 4.2 a copy of the form of proxy or other
communication which is specified in such request with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender, the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the holders of Securities, or
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Securityholders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Each and 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 paying agent shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the holders
of Securities in accordance with the provisions of subsection (b) of this
Section 4.2, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (b).
SECTION 4.3. Reports by Company.
(a) The Company covenants and agrees to file with the Trustee, within 15
days after the date on which the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as said
Commission may from time to time by rules and regulations
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prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company
is not required to file information, documents or reports pursuant to either of
such sections, then to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by said Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail to all holders of
Securities, as the names and addresses of such holders appear upon the Security
Register, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this Section 4.3 as may be
required by rules and regulations prescribed from time to time by the
Commission.
(d) Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.4. Reports by the Trustee.
(a) The Trustee shall transmit to Securityholders 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. If required by Section 313(a) of the Trust Indenture Act, the Trustee,
within sixty days after each May 15 following the date of this Indenture,
commencing May 15, 1998, shall deliver to Securityholders a brief report, dated
as of such May 15, which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with each stock exchange, if any, upon
which the Securities are listed, with the Commission and with the Company. The
Company will promptly notify the Trustee if the Securities are listed on any
stock exchange.
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ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1. Events of Default.
One or more of the following events of default shall constitute an Event
of Default hereunder (whatever the reason for such Event of Default and whether
it shall be voluntary 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) default in the payment of any interest upon any Security or any Other
Debentures when it becomes due and payable, and continuance of such default for
a period of 30 days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms hereof shall not
constitute a default in the payment of interest for this purpose; or
(b) default in the payment of all or any part of the principal of (or
premium, if any, on) any Security or any Other Debentures as and when the same
shall become due and payable either at maturity, upon prepayment, by declaration
of acceleration or otherwise; or
(c) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach 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 principal amount of the outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial part of
its property, or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(e) the Company shall commence a voluntary case under any Bankruptcy Law
or any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or other similar official) of the Company or of any substantial part of
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its property, or shall make any general assignment for the benefit of creditors,
or shall fail generally to pay its debts as they become due.
If an Event of Default with respect to Securities at the time outstanding
occurs and is continuing, then in every such case the Trustee or the holders of
not less than 25% in aggregate principal amount of the Securities then
outstanding may declare the principal amount of all Securities to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the holders of the outstanding Securities), and upon any such
declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that if,
at any time after the principal of the Securities shall have been so declared
due and payable, and before any judgment or decree for the payment of the moneys
due shall have been obtained or entered as hereinafter provided, (i) the Company
shall pay or shall deposit with the Trustee a sum sufficient to pay (A) all
matured installments of interest upon all the Securities and the principal of
and premium, if any, on any and all Securities which shall have become due
otherwise than by acceleration (with interest upon such principal and premium,
if any, and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest, at the same rate as the
rate of interest specified in the Securities to the date of such payment or
deposit) and (B) such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith, and (ii) any and all Events of Default under
the Indenture, other than the non-payment of the principal of the Securities
which shall have become due solely by such declaration of acceleration, shall
have been cured, waived or otherwise remedied as provided herein, then, in every
such case, the holders of a majority in aggregate principal amount of the
Securities then outstanding, by written notice to the Company and to the
Trustee, may rescind and annul such declaration and its consequences, but no
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company,
the Trustee and the holders of the Securities shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and
powers of the Company, the Trustee and the holders of the Securities shall
continue as though no such proceeding had been taken.
SECTION 5.2. Payment of Securities on Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in the
payment of any installment of interest upon any of the Securities as and when
the same shall become due and
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payable, and such default shall have continued for a period of 30 days, or (b)
in case default shall be made in the payment of the principal of or premium, if
any, on any of the Securities as and when the same shall have become due and
payable, whether at maturity of the Securities or upon prepayment or by
declaration or otherwise, then, upon demand of the Trustee, the Company shall
pay to the Trustee, for the benefit of the holders of the Securities, the whole
amount that then shall have become due and payable on all such Securities for
principal and premium, if any, or interest, or both, as the case may be, with
interest upon the overdue principal and premium, if any, and (to the extent that
payment of such interest is enforceable under applicable law and, if the
Securities are held by NYB Trust or a trustee of such trust, without duplication
of any other amounts paid by NYB Trust or a trustee in respect thereof) upon the
overdue installments of interest at the rate borne by the Securities; and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including a reasonable compensation to the Trustee,
its agents, attorneys and counsel, and any expenses or liabilities incurred by
the Trustee hereunder other than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the
Securities and collect in the manner provided by law out of the property of the
Company or any other obligor on the Securities wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Securities under
Bankruptcy Law, or any other applicable law, or in case a receiver or trustee
shall have been appointed for the property of the Company or such other obligor,
or in the case of any other similar judicial proceedings relative to the Company
or other obligor upon the Securities, or to the creditors or property of the
Company or such other obligor, the Trustee, irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section 5.2, shall be
entitled and empowered, by intervention in such proceedings or otherwise, to
file and prove a claim or claims for the whole amount of principal and interest
owing and unpaid in respect of the Securities and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee (including
any claim for reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee, except as a result of negligence or
bad faith) and of the Securityholders allowed in such judicial proceedings
relative to the Company or any other obligor on the Securities, or to the
creditors or property of the Company or such other obligor,
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unless prohibited by applicable law and regulations, to vote on behalf of the
holders of the Securities in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable proceedings,
and to collect and receive any moneys or other property payable or deliverable
on any such claims, and to distribute the same after the deduction of its
charges and expenses; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the Securityholders to make such
payments to the Trustee, and, in the event that the Trustee shall consent to the
making of such payments directly to the Securityholders, to pay to the Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of negligence or
bad faith.
Nothing herein contained shall be construed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any holder thereof or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof on any trial or
other proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall be for the ratable benefit of the holders of the
Securities.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities, and it shall not be necessary to make any holders of the
Securities parties to any such proceedings.
SECTION 5.3. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the Securities in respect of which moneys have
been collected, and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection applicable to
the Securities and reasonable compensation to the Trustee, its agents, attorneys
and counsel, and of all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its negligence or bad faith;
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Second: To the payment of all Senior Indebtedness of the Company if and to
the extent required by Article XV;
Third: To the payment of the amounts then due and unpaid upon Securities
for principal of (and premium, if any) and interest on the Securities, in
respect of which or for the benefit of which money has been collected, ratably,
without preference of priority of any kind, according to the amounts due on such
Securities for principal (and premium, if any) and interest, respectively; and
Fourth: To the Company.
SECTION 5.4. Proceedings by Securityholders.
No holder of any Security shall have any right by virtue of or by availing
of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
such holder previously shall have given to the Trustee written notice of an
Event of Default and of the continuance thereof with respect to the Securities
specifying such Event of Default, as hereinbefore provided, and unless also the
holders of not less than 25% in aggregate principal amount of the Securities
then outstanding shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as Trustee hereunder and shall
have offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action, suit or proceeding, it
being understood and intended, and being expressly covenanted by the taker and
holder of every Security with every other taker and holder and the Trustee, that
no one or more holders of Securities shall have any right in any manner whatever
by virtue of or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other holder of Securities, or to obtain
or seek to obtain priority over or preference to any other such holder, or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all holders of Securities.
Notwithstanding any other provisions in this Indenture, however, the right
of any holder of any Security to receive payment of the principal of (and
premium, if any) and interest on such Security, on or after the same shall have
become due and payable, or to institute suit for the enforcement of any such
payment, shall not be impaired or affected without the consent of such holder
and by accepting a Security hereunder it is expressly understood, intended and
covenanted by the taker and holder of every Security with every other such taker
and holder and the Trustee, that no one or more holders of Securities shall have
any right in any manner whatsoever by virtue or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of the holders of any
other Securities, or to obtain or seek to obtain priority over or preference to
any other such holder, or to enforce any right under this
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Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Securities. For the protection and enforcement
of the provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
The Company and the Trustee acknowledge that pursuant to the Declaration,
the holders of Capital Securities are entitled, in the circumstances and subject
to the limitations set forth therein, to commence a Direct Action with respect
to any Event of Default under this Indenture and the Securities.
SECTION 5.5. Proceedings by Trustee.
In case an Event of Default occurs with respect to Securities and is
continuing, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 5.6. Remedies Cumulative and Continuing.
Except as provided in the last paragraph of Section 2.7, all powers and
remedies given by this Article V to the Trustee or to the Securityholders, to
the extent permitted by law, shall be deemed cumulative and not exclusive of any
other powers and remedies available to the Trustee or the holders of the
Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to the Securities, and no delay or omission
of the Trustee or of any holder of any of the Securities to exercise any right
or power accruing upon any Event of Default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.4, every power and remedy given by this Article V or by
law to the Trustee or to the Securityholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.7. Direction of Proceedings and Waiver of Defaults by Majority
of Securityholders.
The holders of a majority in aggregate principal amount of the Securities
at the time outstanding 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; provided, however, that
(subject to the provisions of Section 6.1) the Trustee
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shall have the right to decline to follow any such direction if the Trustee,
upon the advice of counsel, shall determine that the action so directed would be
unjustly prejudicial to the holders not taking part in such direction or if the
Trustee being advised by counsel determines that the action or proceeding so
directed may not lawfully be taken or if the Trustee, in good faith, by its
board of directors or trustees, executive committee or a trust committee of
directors or trustees and/or Responsible Officers shall determine that the
action or proceedings so directed would involve the Trustee in personal
liability. Prior to any declaration accelerating the maturity of the Securities,
the holders of a majority in aggregate principal amount of the Securities at the
time outstanding may on behalf of the holders of all of the Securities waive any
past default or Event of Default and its consequences except a default (a) in
the payment of principal of or premium, if any, or interest on any of the
Securities or (b) in respect of covenants or provisions hereof which cannot be
modified or amended without the consent of the holder of each Security affected;
provided, however, that if the Securities are held by the Property Trustee, such
waiver or modification to such waiver shall not be effective until the holders
of a majority in aggregate liquidation amount of Trust Securities shall have
consented to such waiver or modification to such waiver; and provided further,
that if the consent of the holder of each outstanding Security is required, such
waiver shall not be effective until each holder of the Trust Securities shall
have consented to such waiver. Upon any such waiver, the default covered thereby
shall be deemed to be cured for all purposes of this Indenture and the Company,
the Trustee and the holders of the Securities shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon. Whenever
any default or Event of Default hereunder shall have been waived as permitted by
this Section 5.7, said default or Event of Default shall for all purposes of the
Securities and this Indenture be deemed to have been cured and to be not
continuing.
SECTION 5.8. Notice of Defaults.
The Trustee, within 90 days after the occurrence of a default with respect
to the Securities, shall mail to all Securityholders, as the names and addresses
of such holders appear upon the Security register, notice of all defaults known
to the Trustee, unless such defaults shall have been cured before the giving of
such notice (the term "defaults" for the purpose of this Section 5.8 being
hereby defined to be the events specified in clauses (a), (b), (c), (d) and (e)
of Section 5.1, not including periods of grace, if any, provided for therein,
and irrespective of the giving of written notice specified in clause (c) of
Section 5.1); and provided that, except in the case of default in the payment of
the principal of or premium, if any, or interest on any of the Securities, the
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 Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders; and
provided further, that in the case of any default of the character specified in
Section 5.1(c) no such notice to Securityholders shall be given until at least
60 days after the occurrence thereof but shall be given within 90 days after
such occurrence.
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SECTION 5.9. Undertaking to Pay 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 in its
discretion may 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 and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 5.9 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in aggregate principal
amount of the Securities outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security against the Company on or after the
same shall have become due and payable.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1. Duties and Responsibilities of Trustee.
With respect to the holders of the Securities issued hereunder, the
Trustee, prior to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which has not been cured or
waived) the 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 man would exercise or use under the circumstances in the conduct of
his own affairs.
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
(a) prior to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default which may have occurred
(1) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
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(2) in the absence of bad faith on the part of the Trustee, the
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 Trustee and conforming to the requirements of this Indenture;
but, in the case of any such certificates or opinions which by any provision
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) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(c) 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 the
Securityholders pursuant to Section 5.7, 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;
and
(d) None of the provisions contained in this Indenture shall require the
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.
SECTION 6.2. Reliance on Documents, Opinions, Etc.
Except as otherwise provided in Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, note, debenture or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein may be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any Board
Resolution may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its selection and any advice
or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders,
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pursuant to the provisions of this Indenture, unless such Securityholders shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default (that has not been cured or waived), to exercise such of the
rights and powers vested in it by this Indenture, and to use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(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, consent, order, approval, bond, debenture,
coupon or other paper or document, unless requested in writing to do so by the
holders of a majority in aggregate principal amount of the outstanding
Securities; provided, however, that if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against such
expense or liability as a condition to so proceeding; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents (including
any Authenticating Agent) or attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed by it with due care.
SECTION 6.3. No Responsibility for Recitals, Etc.
The recitals contained herein and in the Securities (except in the
certificate of authentication of the Trustee or the Authenticating Agent) shall
be taken as the statements of the Company, and the Trustee and the
Authenticating Agent assume no responsibility for the correctness of the same.
The Trustee and the Authenticating Agent make no representations as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee and
the Authenticating Agent shall not be accountable for the use or application by
the Company of any Securities or the proceeds of any Securities authenticated
and delivered by the Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture. The Trustee shall not be charged with knowledge of
any default or Event of Default under Section 5.1(a) or (b) relating to Other
Debentures unless (i) a Responsible Officer of the Trustee assigned to its
Principal Office shall have actual knowledge thereof or (ii) the Company, any
Securityholder or the holder of any Other Debenture shall have given the
Trustee written notice thereof in accordance with Section 13.4.
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SECTION 6.4. Trustee, Authenticating Agent, Paying Agents, Transfer Agents
or Registrar May Own Securities.
The Trustee or any Authenticating Agent or any paying agent or any
transfer agent or any Security registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it
would have if it were not Trustee, Authenticating Agent, paying agent, transfer
agent or Security registrar.
SECTION 6.5. Moneys to be Held in Trust.
Subject to the provisions of Section 11.4, all moneys received by the
Trustee or any paying agent, until used or applied as herein provided, shall be
held in trust for the purpose for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
and any paying agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
So long as no Event of Default shall have occurred and be continuing, all
interest allowed on any such moneys shall be paid from time to time upon the
written order of the Company, signed by the Chairman of the Board of Directors,
the President or a Vice President or the Treasurer or an Assistant Treasurer of
the Company.
SECTION 6.6. Compensation and Expenses of Trustee.
The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed to in
writing between the Company and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), and the Company will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify each of the Trustee or any predecessor
Trustee (and its officers, agents, directors and employees) for, and to hold it
harmless against, any and all loss, damage, claim, liability or expense
including taxes (other than taxes based on the income of the Trustee) incurred
without negligence or bad faith on the part of the Trustee and arising out of or
in connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim of liability in the
premises. The obligations of the Company under this Section 6.6 to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders of particular
Securities.
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Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(d) or Section
5.1(e), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 6.7. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.1 and 6.2, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
omitting any action hereunder, such matter (unless other evidence in respect
thereof is herein specifically prescribed), in the absence of negligence or bad
faith on the part of the Trustee, may be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken or omitted by
it under the provisions of this Indenture upon the faith thereof.
SECTION 6.8. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act, subject to the penultimate paragraph thereof.
SECTION 6.9. Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation organized and
doing business under the laws of the United States of America or any state or
territory thereof or of the District of Columbia or a corporation or other
Person permitted to act as trustee by the Commission authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000) and subject to supervision or
examination by federal, state, territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section 6.9 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.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Trustee.
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In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 6.9, the Trustee shall resign immediately in
the manner and with the effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign by giving written notice of such resignation to the Company.
Upon receiving such notice of resignation, the Company shall promptly appoint a
successor trustee or trustees by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment within 60 days after the mailing of such notice of
resignation to the Company, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide holder of a Security for at least six
months may, subject to the provisions of Section 5.9, on behalf of himself and
all others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur,
(1) the Trustee shall fail to comply with the provisions of Section
6.8 after written request therefor by the Company or by any Securityholder who
has been a bona fide holder of a Security or Securities for at least six months,
or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.9 and shall fail to resign after written request
therefor by the Company or by any such Securityholder, or
(3) 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, the Company may remove the Trustee and
appoint a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee, or, subject to the provisions of Section 5.9, any
Securityholder 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. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
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(c) The holders of a majority in aggregate principal amount of the
Securities at the time outstanding may at any time remove the Trustee and
nominate a successor trustee, which shall be deemed appointed as successor
trustee unless within 10 days after such nomination the Company objects thereto
or if no successor trustee shall have been so appointed and shall have accepted
appointment within 30 days after such removal, in which case the Trustee so
removed or any Securityholder, upon the terms and conditions and otherwise as in
subsection (a) of this Section 6.10 provided, may petition any court of
competent jurisdiction for an appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
SECTION 6.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall execute,
acknowledge and deliver to the Company and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the retiring trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as trustee herein; but, nevertheless, on
the written request of the Company or of the successor trustee, the trustee
ceasing to act, upon payment of any amounts then due it pursuant to the
provisions of Section 6.6, shall execute and deliver an instrument transferring
to such successor trustee all the rights and powers of the trustee so ceasing to
act and shall duly assign, transfer and deliver to such successor trustee all
property and money held by such retiring trustee thereunder. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act, nevertheless,
shall retain a lien upon all property or funds held or collected by such trustee
to secure any amounts then due it pursuant to the provisions of Section 6.6.
No successor trustee shall accept appointment as provided in this Section
6.11 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 6.8 and eligible under the provisions
of Section 6.9.
Upon acceptance of appointment by a successor trustee as provided in this
Section 6.11, the Company shall mail notice of the succession of such trustee
hereunder to the holders of Securities at their addresses as they shall appear
on the Security register. If the Company fails to mail such notice within 10
days after the acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.
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SECTION 6.12. Succession by Merger, Etc.
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 without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any Securities shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor trustee; and in all such cases such certificates shall have the full
force which the Securities or this Indenture elsewhere provides that the
certificate of the Trustee shall have; provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee or
authenticate Securities in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a Creditor.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent included therein.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents appointed by the Trustee
with power to act on its behalf and subject to its direction in the
authentication and delivery of Securities issued upon exchange or transfer
thereof as fully to all intents and purposes as though any such Authenticating
Agent had been expressly authorized to authenticate and deliver Securities;
provided, that the Trustee shall have no liability to the Company for any acts
or omissions of the Authenticating Agent with respect to the authentication and
delivery of Securities. Any such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States or
of any state or territory thereof or of the District of Columbia authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of at least $5,000,000 and being subject to supervision or examination
by federal, state, territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually pursuant to law or
the requirements of such authority, then for the purposes of this Section 6.14
the combined capital and surplus of such corporation
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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, it
shall resign immediately in the manner and with the effect herein specified in
this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the successor
of such Authenticating Agent hereunder, if such successor corporation is
otherwise eligible under this Section 6.14 without the execution or filing of
any paper or any further act on the part of the parties hereto or such
Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written notice
of resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible under this Section 6.14, the
Trustee may promptly appoint a successor Authenticating Agent eligible under
this Section 6.14, shall give written notice of such appointment to the Company
and shall mail notice of such appointment to all Securityholders as the names
and addresses of such holders appear on the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent
herein.
The Company agrees to pay to any Authenticating Agent from time to time
reasonable compensation for its services. Any Authenticating Agent shall have no
responsibility or liability for any action taken by it as such in accordance
with the directions of the Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a specified
percentage in aggregate principal amount of the Securities may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action) the fact that at the time
of taking any such action the holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by such Securityholders in person or by agent or proxy
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appointed in writing, or (b) by the record of such holders of Securities voting
in favor thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of Article VIII, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders.
If the Company shall solicit from the Securityholders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, as evidenced by an Officers' Certificate, fix in advance a
record date for the determination of Securityholders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
action or to revoke any such action, but the Company shall have no obligation to
do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action or revocation may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
action, and for that purpose the Outstanding Securities shall be computed as of
the record date; provided, however, that no such authorization, agreement or
consent by such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
SECTION 7.2. Proof of Execution by Securityholders.
Subject to the provisions of Section 6.1, 6.2 and 8.5, proof of the
execution of any instrument by a Securityholder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. The ownership of Securities shall be proved by the Security
Register or by a certificate of the Security registrar. The Trustee may require
such additional proof of any matter referred to in this Section as it shall deem
necessary.
The record of any Securityholders' meeting shall be proved in the manner
provided in Section 8.6.
SECTION 7.3. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any Security, the
Company, the Trustee, any Authenticating Agent, any paying agent, any transfer
agent and any Security registrar may deem the person in whose name such Security
shall be registered upon the Security Register to be, and may treat him as, the
owner of such Security (whether or not such Security shall be overdue) for the
purpose of receiving payment of or on account of the principal of and premium,
if any, and (subject to Section 2.5) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any Authenticating Agent
nor
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any paying agent nor any transfer agent nor any Security registrar shall be
affected by any notice to the contrary. All such payments so made to any holder
for the time being or upon his order shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
SECTION 7.4. Securities Owned by Company Deemed Not Outstanding.
In determining whether the holders of the requisite aggregate principal
amount of Securities have concurred in any direction, consent or waiver under
this Indenture, Securities which are owned by the Company or any other obligor
on the Securities or by any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
other obligor on the Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Securities which the Trustee actually
knows are so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as outstanding for the purposes of this
Section 7.4 if the pledgee shall establish to the satisfaction of the Trustee
the pledgee's right to vote such Securities and that the pledgee is not the
Company or any such other obligor or person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any such other obligor. In the case of a dispute as to such right, any decision
by the Trustee taken upon the advice of counsel shall be full protection to the
Trustee.
SECTION 7.5. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.1, of the taking of any action by the holders of the
percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action, any holder of a Security (or any
Security issued in whole or in part in exchange or substitution therefor),
subject to Section 7.1, the serial number of which is shown by the evidence to
be included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee at its Principal Office and upon
proof of holding as provided in Section 7.2, revoke such action so far as
concerns such Security (or so far as concerns the principal amount represented
by any exchanged or substituted Security). Except as aforesaid any such action
taken by the holder of any Security shall be conclusive and binding upon such
holder and upon all future holders and owners of such Security, and of any
Security issued in exchange or substitution therefor, irrespective of whether or
not any notation in regard thereto is made upon such Security or any Security
issued in exchange or substitution therefor.
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ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.1. Purposes of Meetings.
A meeting of Securityholders may be called at any time and from time to
time pursuant to the provisions of this Article VIII for any of the following
purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any default hereunder
and its consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article V;
(b) to remove the Trustee and nominate a successor trustee pursuant to the
provisions of Article VI;
(c) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 9.2; or
(d) to take any other action authorized to be taken by or on behalf of the
holders of any specified aggregate principal amount of such Securities under any
other provision of this Indenture or under applicable law.
SECTION 8.2. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders to take any
action specified in Section 8.1, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, as the Trustee shall determine.
Notice of every meeting of the Securityholders, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be mailed to holders of Securities at their addresses as
they shall appear on the Securities Register. Such notice shall be mailed not
less than 20 nor more than 180 days prior to the date fixed for the meeting.
SECTION 8.3. Call of Meetings by Company or Securityholders.
In case at any time the Company pursuant to a resolution of the Board of
Directors, or the holders of at least 10% in aggregate principal amount of the
Securities then outstanding, shall have requested the Trustee to call a meeting
of Securityholders, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request,
then the Company or such Securityholders may determine the time and the place in
said Borough of
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Manhattan for such meeting and may call such meeting to take any action
authorized in Section 8.1, by mailing notice thereof as provided in Section 8.2.
SECTION 8.4. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a person shall
(a) be a holder of one or more Securities or (b) be a person appointed by an
instrument in writing as proxy by a holder of one or more Securities. The only
persons who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 8.5. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee, by an instrument in writing, shall appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 8.3, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 8.4, at any meeting each holder of
Securities or proxy therefor shall be entitled to one vote for each $25
principal amount of Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Securities held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Securityholders. Any
meeting of Securityholders duly called pursuant to the provisions of Section 8.2
or 8.3 may be adjourned from time to time by a majority of those present,
whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
The Persons entitled to vote a majority in principal amount of the
outstanding Securities shall constitute a quorum for a meeting of holders of
Securities; provided, however, that if any action is to be taken at such meeting
with respect to a consent, waiver, request, demand, notice, authorization,
direction or other action which may be given by the holders of not less
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than a specified percentage in principal amount of the outstanding Securities,
the Persons holding or representing such specified percentage in principal
amount of the outstanding Securities will constitute a quorum. In the absence of
a quorum within 30 minutes of the time appointed for any such meeting, the
meeting, if convened at the request of holders of Securities, shall be
dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 8.2, except that such
notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the outstanding Securities which shall constitute a
quorum.
Except as limited by the first proviso to the first paragraph of Section
9.2, any resolution presented to a meeting or adjourned meeting duly reconvened
at which a quorum is present as aforesaid may be adopted by the affirmative vote
of the holders of a majority in principal amount of the outstanding Securities;
provided, however, that, except as limited by the first proviso to the first
paragraph of Section 9.2, any resolution with respect to any consent, waiver,
request, demand, notice, authorization, direction or other action which this
Indenture expressly provides may be given by the holders of not less than a
specified percentage in principal amount of the outstanding Securities may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid only by the affirmative vote of the holders of
not less than such specified percentage in principal amount of the outstanding
Securities.
Any resolution passed or decision taken at any meeting of holders of
Securities duly held in accordance with this Section shall be binding on all the
holders of Securities whether or not present or represented at the meeting.
SECTION 8.6. Voting.
The vote upon any resolution submitted to any meeting of holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of such holders or of their representatives by proxy and the serial
number or numbers of the Securities held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the
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notice of the meeting and showing that said notice was mailed as provided in
Section 8.2. The record shall show the serial numbers of the Securities voting
in favor of or against any resolution. The record shall be signed and verified
by the affidavits of the permanent chairman and secretary of the meeting and one
of the duplicates shall be delivered to the Company and the other to the Trustee
to be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting. The holders of Securities shall vote or consent for all
purposes as a single class.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE IX
AMENDMENTS
SECTION 9.1. Without Consent of Securityholders.
The Company and the Trustee may from time to time and at any time amend
the Indenture, without the consent of the Securityholders, for one or more of
the following purposes:
(a) to evidence the succession of another corporation to the Company, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Company pursuant to Article X
hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the Securityholders as the
Board of Directors and the Trustee shall consider to be for the protection of
the Securityholders, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants, restrictions or
conditions a default or an Event of Default permitting the enforcement of all or
any of the remedies provided in this Indenture as herein set forth; provided,
however, that in respect of any such additional covenant, restriction or
condition such amendment may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee upon such default;
(c) to provide for the issuance under this Indenture of Securities in
physical form (including Securities registrable as to principal only) and to
provide for exchangeability of such Securities with the Securities issued
hereunder in fully registered form and to make all appropriate changes for such
purpose;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other
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provision contained herein or in any supplemental indenture, or to make such
other provisions in regard to matters or questions arising under this Indenture;
provided that any such action shall not materially adversely affect the
interests of the holders of the Securities;
(e) to evidence and provide for the acceptance of appointment hereunder by
a successor trustee with respect to the Securities;
(f) to make provision for transfer procedures, certification, book-entry
provisions, and all other matters required pursuant to Section 2.6 or otherwise
necessary, desirable or appropriate in connection with the issuance of
Securities to holders of Capital Securities in the event of a distribution of
Securities by NYB Trust following a Dissolution Event;
(g) to qualify or maintain qualification of this Indenture under the Trust
Indenture Act; or
(h) to make any change that does not adversely affect the rights of any
Securityholder in any material respect.
The Trustee is hereby authorized to join with the Company in the execution
of any supplemental indenture to effect such amendment, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer and assignment of any property thereunder, but
the Trustee shall not be obligated to, but may in its discretion, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any amendment to the Indenture authorized by the provisions of this
Section 9.1 may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time outstanding, notwithstanding
any of the provisions of Section 9.2.
SECTION 9.2. With Consent of Securityholders.
With the consent (evidenced as provided in Section 7.1) of the holders of
a majority in aggregate principal amount of the Securities at the time
outstanding, the Company, when authorized by a Board Resolution, and the Trustee
may from time to time and at any time amend the Indenture 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 the Securities; provided, however, that no such amendment shall
without the consent of the holders of each Security then outstanding and
affected thereby (i) extend the Maturity Date of any Security, or reduce the
rate or extend the time of payment of interest thereon (except as contemplated
by Article XVI), or reduce the principal amount thereof, or reduce any amount
payable on prepayment thereof, [or make the principal thereof or any interest or
premium thereon payable in any coin or currency other than that provided in the
Securities, or impair or affect the right of any Securityholder to institute
suit for payment
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thereof,] or (ii) reduce the aforesaid percentage of Securities the holders of
which are required to consent to any such amendment to the Indenture, provided,
however, that if the Securities are held by NYB Trust, such amendment shall not
be effective until the holders of a majority in liquidation amount of Trust
Securities shall have consented to such amendment; and provided, further, that
if the consent of the holder of each outstanding Security is required, such
amendment shall not be effective until each holder of the Trust Securities shall
have consented to such amendment.
Upon the request of the Company accompanied by a copy of a Board
Resolution authorizing the execution of any supplemental indenture affecting
such amendment, and upon the filing with the Trustee of evidence of the consent
of Securityholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, prepared by the
Company, setting forth in general terms the substance of such supplemental
indenture, to the Securityholders as their names and addresses appear upon the
Security Register. Any failure of the Trustee to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.3. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures.
Any supplemental indenture executed pursuant to the provisions of this
Article IX shall comply with the Trust Indenture Act. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article IX, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Securities shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
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SECTION 9.4. Notation on Securities.
Securities authenticated and delivered after the execution of any
supplemental indenture affecting such Securities pursuant to the provisions of
this Article IX may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of this
Indenture contained in any such supplemental indenture may be prepared and
executed by the Company, authenticated by the Trustee or the Authenticating
Agent and delivered in exchange for the Securities then outstanding.
SECTION 9.5. Evidence of Compliance of Supplemental Indenture to be
Furnished to the Trustee.
The Trustee, subject to the provisions of Sections 6.1 and 6.2, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article IX.
The Trustee may receive an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant to this Article is authorized or
permitted by, and conforms to, the terms of this Article and that it is proper
for the Trustee under the provisions of this Article to join in the execution
thereof.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.1. Company May Consolidate, Etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other Person
(whether or not affiliated with the Company, as the case may be), or successive
consolidations or mergers in which the Company, or its successor or successors,
as the case may be, shall be a party or parties, or shall prevent any sale,
conveyance, transfer or lease of the property of the Company, or its successor
or successors, as the case may be, as an entirety, or substantially as an
entirety, to any other Person (whether or not affiliated with the Company, or
its successor or successors, as the case may be) authorized to acquire and
operate the same; provided, that (a) the Company is the surviving Person, or the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, conveyance, transfer or lease of property is
made is a Person organized and existing under the laws of the United States or
any State thereof or the District of Columbia, and (b) upon any such
consolidation or merger in which the Company is not the surviving Person or any
such sale, conveyance, transfer or lease of the property of the Company as an
entirety, or substantially as
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an entirety, to any other Person, the due and punctual payment of the principal
of (and premium, if any) and interest on the Securities according to their tenor
and the due and punctual performance and observance of all the covenants and
conditions of this Indenture to be kept or performed by the Company shall be
expressly assumed, by supplemental indenture (which shall conform to the
provisions of the Trust Indenture Act, as then in effect) satisfactory in form
to the Trustee executed and delivered to the Trustee by the Person formed by
such consolidation, or into which the Company shall have been merged, or by the
Person which shall have acquired such property, as the case may be, and (c)
after giving effect to such consolidation, merger, sale, conveyance, transfer or
lease, no Default or Event of Default shall have occurred and be continuing.
SECTION 10.2. Successor Corporation to be Substituted for Company.
In case of any such consolidation, merger, conveyance or transfer and upon
the assumption by the successor corporation, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the due
and punctual payment of the principal of and premium, if any, and interest on
all of the Securities and the due and punctual performance and observance of all
of the covenants and conditions of this Indenture to be performed or observed by
the Company, such successor Person shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of the
first part, and the Company thereupon shall be relieved of any further liability
or obligation hereunder or upon the Securities. Such successor Person thereupon
may cause to be signed, and may issue either in its own name or in the name of
New York Bancorp Inc., any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee or the Authenticating Agent; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee or the Authenticating
Agent shall authenticate and deliver any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee or the
Authenticating Agent for authentication, and any Securities which such successor
Person thereafter shall cause to be signed and delivered to the Trustee or the
Authenticating Agent for that purpose. 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 Indentures had been issued at the date of the
execution hereof.
SECTION 10.3. Opinion of Counsel to be Received by Trustee.
The Trustee, subject to the provisions of Sections 6.1 and 6.2, may
receive an Opinion of Counsel as conclusive evidence that any consolidation,
merger, sale, conveyance, transfer or lease, and any assumption, permitted or
required by the terms of this Article X complies with the provisions of this
Article X. The Trustee is not obligated to receive such an Opinion of Counsel in
any case.
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ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.1. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for cancellation all
Securities theretofore authenticated (other than any Securities which shall have
been destroyed, lost or stolen and which shall have been replaced as provided in
Section 2.7) and not theretofore cancelled, or (b) all the Securities not
theretofore cancelled or delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for prepayment within one year under arrangements
satisfactory to the Trustee for the giving of notice of prepayment, and the
Company shall deposit with the Trustee, in trust, funds sufficient to pay on the
Maturity Date or upon prepayment all of the Securities (other than any
Securities which shall have been destroyed, lost or stolen and which shall have
been replaced as provided in Section 2.7) not theretofore cancelled or delivered
to the Trustee for cancellation, including principal and premium, if any, and
interest due or to become due to the Maturity Date or prepayment date, as the
case may be, but excluding, however, the amount of any moneys for the payment of
principal of or premium, if any, or interest on the Securities (1) theretofore
repaid to the Company in accordance with the provisions of Section 11.4, or (2)
paid to any State or to the District of Columbia pursuant to its unclaimed
property or similar laws, and if in either case the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect except for the provisions of
Sections 2.2, 2.6, 2.7, 3.1, 3.2, 3.4, 6.6, 6.10 and 11.4 hereof, which shall
survive until such Securities shall mature and be paid. Thereafter, Sections
6.6, 6.10 and 11.4 shall survive, and the Trustee, on demand of the Company
accompanied by any Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture; provided that the Company hereby
agrees to reimburse the Trustee for any costs or expenses thereafter reasonably
and properly incurred by the Trustee in connection with this Indenture or the
Securities.
SECTION 11.2. Deposited Moneys and U.S. Government Obligations to be Held
in Trust by Trustee.
Subject to the provisions of Section 11.4, all moneys and U.S. Government
Obligations deposited with the Trustee pursuant to Sections 11.1 or 11.5 shall
be held in trust and applied by it to the payment, either directly or through
any paying agent (including the Company if acting as its own paying agent), to
the holders of the particular Securities for the payment of which such moneys or
U.S. Government Obligations have been deposited with the Trustee, of all sums
due and to become due thereon for principal, premium, if any, and interest.
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The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 11.5 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the holders of outstanding Securities.
SECTION 11.3. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys then held
by any paying agent of the Securities (other than the Trustee), upon written
demand of the Company, shall be repaid to it or paid to the Trustee, and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 11.4. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying agent for
payment of the principal of or premium, if any, or interest on Securities and
not applied but remaining unclaimed by the holders of Securities for two years
after the date upon which the principal of or premium, if any, or interest on
such Securities, as the case may be, shall have become due and payable, shall be
repaid to the Company by the Trustee or such paying agent on Company Request;
and the holder of any of the Securities shall thereafter look only to the
Company for any payment which such holder may be entitled to collect and all
liability of the Trustee or such paying agent with respect to such moneys shall
thereupon cease.
SECTION 11.5. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations.
The Company shall be deemed to have been Discharged (as defined below)
from its obligations with respect to the Securities on the 91st day after the
conditions set forth below have been satisfied:
(1) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee or the Defeasance Agent (as defined below) as trust
funds in trust, specifically pledged as security for, and dedicated solely to,
the benefit of the holders of the Securities (i) money in an amount, or (ii)
U.S. Government Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, money in an amount, or (iii) a
combination of (i) and (ii), sufficient, in the opinion (with respect to (ii)
and (iii)) of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee and the
Defeasance Agent, if any, to pay and discharge each installment of principal of
and interest and premium, if any, on the outstanding Securities on the dates
such installments of principal, interest or premium are due;
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(2) if the Securities are then listed on any national securities
exchange, the Company shall have delivered to the Trustee and the Defeasance
Agent, if any, an Opinion of Counsel to the effect that the exercise of the
option under this Section 11.5 would not cause such Securities to be delisted
from such exchange;
(3) no Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit;
(4) the Company shall have delivered to the Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to the effect that holders of
the Securities will not recognize income, gain or loss for United States federal
income tax purposes as a result of the exercise of the option under this Section
11.5 and will be subject to United States federal income tax on the same amount
and in the same manner and at the same times as would have been the case if such
option had not been exercised, and such opinion shall be based on a statute so
providing or be accompanied by a private letter ruling to that effect received
from the United States Internal Revenue Service or a revenue ruling pertaining
to a comparable form of transaction to that effect published by the United
States Internal Revenue Service; and
(5) the Company shall have delivered to the Trustee and the
Defeasance Agent, if any, an Officers' Certificate stating that in the opinion
of the signers all conditions precedent provided for in this Section 11.5 have
been compiled with.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities and to have satisfied all the obligations under this Indenture
relating to the Securities (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except (A) the rights
of holders of Securities to receive, from the trust fund described in clause (1)
above, payment of the principal of and the interest and premium, if any, on the
Securities when such payments are due; (B) the Company's obligations with
respect to the Securities under Sections 2.2, 2.6, 2.7, 3.2, 3.4, 6.10 and 11.4;
and (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder.
"Defeasance Agent" means another financial institution which is eligible
to act as Trustee hereunder and which assumes all of the obligations of the
Trustee necessary to enable the Trustee to act under this Article. In the event
such a Defeasance Agent is appointed pursuant to this Section, the following
conditions shall apply:
(1) The Trustee shall have approval rights over the document appointing
such Defeasance Agent and the document setting forth such Defeasance Agent's
rights and responsibilities; and
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(2) The Defeasance Agent shall provide verification to the Trustee
acknowledging receipt of sufficient money and/or U.S. Government Obligations to
meet the applicable conditions set forth in this Section 11.5.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.1. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of or premium, if any, or
interest on any Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in this Indenture, or in any Security, or because of the creation of
any indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor Person to the Company, either directly or through
the Company or any successor Person to the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of the Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1. Successors.
All the covenants, stipulations, promises and agreements in this Indenture
contained by the Company shall bind its successors and assigns whether so
expressed or not.
SECTION 13.2. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company.
SECTION 13.3. Surrender of Company Powers.
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to
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the Company, and thereupon such power so surrendered shall terminate both as to
the Company, as the case may be, and as to any successor Person.
SECTION 13.4. Addresses for Notices, Etc.
Any notice or demand which by any provision of this Indenture is required
or permitted to be given or served by the Trustee or by the holders of
Securities on the Company may be given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed
(until another address is filed by the Company with the Trustee for the purpose)
to the Company, 241-02 Northern Boulevard, Douglaston, New York 11362,
Attention: Chief Executive Officer. Any notice, direction, request or demand by
any Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at the
office of the Trustee, 101 Barclay Street, Floor 21 West, New York, NY 10286,
Attention: Corporate Trustee Administration Department (unless another address
is provided by the Trustee to the Company for the purpose).
Any notice or communication to a holder shall be mailed by first class
mail to his or her address shown on the register kept by the Registrar. Failure
to mail a notice or communication to a holder or any defect in it shall not
affect its sufficiency with respect to other holders.
SECTION 13.5. Governing Law.
This Indenture and each Security shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be governed
by and construed in accordance with the laws of said State, without regard to
conflicts of laws principles thereof.
SECTION 13.6. Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that in the opinion of the
signers all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture (except pursuant to Section 3.5) shall include (1) a
statement that the person making such certificate or opinion has read such
covenant or condition; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based; (3) a statement that, in the opinion of
such person, he has
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made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 13.7. Business Days.
In any case where the date of payment of principal of or premium, if any,
or interest on the Securities will not be a Business Day, the payment of such
principal of or premium, if any, or interest on the Securities need not be made
on such date but may be made on the next succeeding Business Day, except that if
such next succeeding Business Day falls in the next succeeding Calendar Year,
such payment shall be made on the immediately preceding Business Day, with the
same force and effect as if made on the date of payment and no interest shall
accrue for the period from and after such date.
SECTION 13.8. Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 13.9. Table of Contents, Headings, Etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
SECTION 13.10. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
SECTION 13.11. Separability.
In case any one or more of the provisions contained in this Indenture or
in the Securities shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of the Securities,
but this Indenture and the Securities shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
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SECTION 13.12. Assignment.
The Company will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company will remain primarily liable for all its obligations.
Subject to the foregoing, the Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns. This
Indenture may not otherwise be assigned by the parties thereto.
SECTION 13.13. Acknowledgment of Rights.
The Company acknowledges that, with respect to any Securities held by NYB
Trust or a trustee of such trust, if the Property Trustee of such Trust fails to
enforce its rights under this Indenture as the holder of the Securities held as
the assets of NYB Trust, any holder of Capital Securities may institute, to the
fullest extent permitted by law, legal proceedings directly against the Company
to enforce such Property Trustee's rights under this Indenture without first
instituting any legal proceedings against such Property Trustee or any other
person or entity. Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Company to pay principal of or premium, if any, or interest on the Securities
when due, the Company acknowledges that a holder of Capital Securities may
directly institute a proceeding for enforcement of payment to such holder of the
principal of or premium, if any, or interest on the Securities having a
principal amount equal to the aggregate liquidation amount of the Capital
Securities of such holder on or after the respective due date specified in the
Securities.
ARTICLE XIV
PREPAYMENT OF SECURITIES -- MANDATORY AND
OPTIONAL SINKING FUND
SECTION 14.1. Special Event Repayment.
If a Special Event has occurred and is continuing then, notwithstanding
Section 14.2(a) but subject to Section 14.2(c), the Company shall have the right
at any time prior to the Initial Optional Prepayment Date, upon (i) not less
than 45 days written notice to the Trustee, which notice shall be accompanied by
an Officers' Certificate certifying that a Special Event entitling the Company
to prepay the Securities pursuant to this Section, has occurred and (ii) not
less than 30 days nor more than 60 days written notice to the Securityholders,
to prepay the Securities, in whole, but not in part, within 90 days following
the occurrence of such Special Event at the Special Event Prepayment Price. The
Special Event Prepayment Price shall be paid prior to 12:00 noon, New York time,
on the date of such prepayment or such earlier time as the Company determines,
provided that the Company shall deposit with the Trustee an amount sufficient to
pay the Special Event Prepayment Price by 10:00 a.m., New York time,
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on the date such Special Event Prepayment Price is to be paid. The Company shall
provide the Trustee with written notice of the Special Event Prepayment Price
promptly after the calculation thereof, which notice shall include any
calculation made in connection with the determination of the Special Event
Prepayment Price.
SECTION 14.2. Optional Prepayment by Company.
(a) Subject to the provisions of this Article XIV, including but not
limited to Section 14.2(c), the Company shall have the right to prepay the
Securities, in whole or in part, from time to time, on or after the Initial
Optional Prepayment Date at an optional prepayment price (the "Optional
Prepayment Price") equal to 100% of the principal amount to be prepaid plus
accrued and unpaid interest thereon (including Additional Interest and
Compounded Interest, if any) to the applicable date of prepayment.
If the Securities are only prepaid redeemed pursuant to this Section 14.2,
the Securities will be prepaid by lot or by any other method utilized by the
Trustee; provided, that if at the time of prepayment the Securities are
registered as a Global Security, the Depositary shall determine, in accordance
with its procedures, the principal amount of such Securities held for the
account of its participants to be prepaid. The Optional Prepayment Price shall
be paid prior to 12:00 noon, New York time, on the date of such prepayment or at
such earlier time as the Company determines, provided that the Company shall
deposit with the Trustee an amount sufficient to pay the Optional Prepayment
Price by 10:00 a.m., New York time, on the date such Optional Prepayment Price
is to be paid.
(b) Notwithstanding the first sentence of Section 14.2, upon the entry of
an order for dissolution of NYB Trust by a court of competent jurisdiction, the
Securities thereafter will be subject to optional prepayment, in whole only, but
not in part, on or after October 31, 2001, at the Optional Prepayment Price and
otherwise in accordance with this Article XIV.
(c) Any prepayment of Securities pursuant to Section 14.1 or Section 14.2
shall be subject to the receipt by the Company of any required regulatory
approval, if then required.
SECTION 14.3. No Sinking Fund.
The Securities are not entitled to the benefit of any sinking fund.
SECTION 14.4. Notice of Prepayment; Selection of Securities.
In case the Company shall desire to exercise the right to prepay all, or,
as the case may be, any part of the Securities in accordance with their terms,
it shall fix a date for prepayment and shall mail a notice of such prepayment at
least 30 and not more than 60 days prior to the date fixed for prepayment to the
holders of Securities so to be prepaid as a whole or in part at their last
addresses as the same appear on the Security Register. Such mailing shall be by
first
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class mail. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the holder of any Security designated for prepayment as
a whole or in part shall not affect the validity of the proceedings for the
prepayment of any other Security.
Each such notice of prepayment shall specify the CUSIP number of the
Securities to be prepaid, the date fixed for prepayment, the Prepayment Price at
which the Securities are to be prepaid (or the method by which such Prepayment
Price is to be calculated), the place or places of payment, that payment will be
made upon presentation and surrender of the Securities, that interest accrued to
the date fixed for prepayment will be paid as specified in said notice, and that
on and after said date interest thereon or on the portions thereof to be prepaid
will cease to accrue. If less than all the Securities are to be prepaid the
notice of prepayment shall specify the numbers of the Securities to be prepaid.
In case any Security is to be prepaid in part only, the notice of prepayment
shall state the portion of the principal amount thereof to be prepaid and shall
state that on and after the date fixed for prepayment, upon surrender of such
Security, a new Security or Securities in principal amount equal to the portion
thereof not prepaid will be issued.
By 10:00 a.m. New York time on the prepayment date specified in the notice
of prepayment given as provided in this Section, the Company will deposit with
the Trustee or with one or more paying agents an amount of money sufficient to
prepay on the prepayment date all the Securities so called for prepayment at the
appropriate Prepayment Price, together with accrued interest to the date fixed
for prepayment.
The Company will give the Trustee notice not less than 45 days prior to
the prepayment date as to the aggregate principal amount of Securities to be
prepaid and the Trustee shall select, in such manner as in its sole discretion
it shall deem appropriate and fair, the Securities or portions thereof to be
prepaid.
SECTION 14.5. Payment of Securities Called for Prepayment.
If notice of prepayment has been given as provided in Section 14.4, the
Securities or portions 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 Prepayment Price, together with interest
accrued to the date fixed for prepayment (subject to the rights of holders of
Securities on the close of business on a regular record date in respect of an
Interest Payment Date occurring on or prior to the prepayment date), and on and
after said date (unless the Company shall default in the payment of such
Securities at the Prepayment Price, together with interest accrued to said date)
interest on the Securities or portions of Securities so called for prepayment
shall cease to accrue. On presentation and surrender of such Securities at a
place of payment specified in said notice, the said Securities or the specified
portions thereof shall be prepaid by the Company at the applicable Prepayment
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Price, together with interest accrued thereon to the date fixed for prepayment
(subject to the rights of holders of Securities on the close of business on a
regular record date in respect of an Interest Payment Date occurring on or prior
to the prepayment date).
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the holder thereof, at the expense of the Company, a new Security or Securities
in principal amount equal to the portion of the Security so presented not
prepaid.
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.1. Agreement to Subordinate.
The Company covenants and agrees, and each holder of Securities issued
hereunder likewise covenants and agrees, that the Securities shall be issued
subject to the provisions of this Article XV; and each holder of a Security,
whether upon original issue or upon transfer or assignment thereof, accepts and
agrees to be bound by such provisions.
The payment by the Company of the principal of, premium, if any, and
interest on all Securities issued hereunder, to the extent and in the manner
hereinafter set forth, shall be subordinated and junior in right of payment to
the prior payment in full of all Allocable Amounts with respect to Senior
Indebtedness, whether outstanding at the date of this Indenture or thereafter
incurred.
No provision of this Article XV shall prevent the occurrence of any
Default or Event of Default hereunder.
SECTION 15.2. Default on Senior Indebtedness.
In the event and during the continuation of any default by the Company in
the payment of principal, premium, interest or any other payment due on any
Senior Indebtedness, or in the event that the maturity of any Senior
Indebtedness has been accelerated because of a default, then, in either case, no
payment shall be made by the Company with respect to the principal (including
prepayments) of or premium, if any, or interest on the Securities.
In the event of the acceleration of the maturity of the Securities, then
no payment shall be made by the Company with respect to the principal (including
prepayments) of or premium, if any, or interest on the Securities until the
holders of all Senior Indebtedness outstanding at the time of such acceleration
shall receive payment in full of all Allocable Amounts due in respect of such
Senior Indebtedness (including any amounts due upon acceleration).
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In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraphs of this Section 15.2, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing, within 90 days of
such payment of the Allocable Amounts then due and owing on such Senior
Indebtedness and only the Allocable Amounts specified in such notice to the
Trustee shall be paid to the holders of such Senior Indebtedness.
SECTION 15.3. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to creditors
upon any dissolution or winding-up or liquidation or reorganization of the
Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all Allocable Amounts due upon all Senior
Indebtedness of the Company shall first be paid in full, or payment thereof
provided for in money in accordance with its terms, before any payment is made
by the Company on account of the principal (and premium, if any) or interest on
the Securities; and upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Securityholders or the Trustee would be entitled to receive from the
Company, except for the provisions of this Article XV, shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the Securityholders or
by the Trustee under the Indenture if received by them or it, directly to the
holders of Senior Indebtedness of the Company (pro rata to such holders on the
basis of the respective Allocable Amounts of Senior Indebtedness held by such
holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay all
Allocable Amounts in respect of such Senior Indebtedness in full, in money or
money's worth, after giving effect to any concurrent payment or distribution to
or for the holders of such Senior Indebtedness, before any payment or
distribution is made to the Securityholders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee before all Allocable Amounts in respect of Senior Indebtedness is paid
in full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of such Senior Indebtedness
or their representative or representatives, or to the trustee or trustees under
any indenture pursuant to
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which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Indebtedness remaining unpaid to the
extent necessary to pay all Allocable Amounts in respect of such Senior
Indebtedness in full in money in accordance with its terms, after giving effect
to any concurrent payment or distribution to or for the benefit of the holders
of such Senior Indebtedness.
For purposes of this Article XV, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article XV with respect to
the Securities to the payment of Senior Indebtedness that may at the time be
outstanding, provided that (i) such Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of such Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the sale,
conveyance, transfer or lease of its property as an entirety, or substantially
as an entirety, to another Person upon the terms and conditions provided for in
Article X of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 15.3 if such
other Person, as a part of such consolidation, merger, sale, conveyance,
transfer or lease, shall comply with the conditions stated in Article X of this
Indenture.
SECTION 15.4. Subrogation.
Subject to the payment in full of all Allocable Amounts in respect of
Senior Indebtedness, the rights of the Securityholders shall be subrogated to
the rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company, as the case may
be, applicable to such Senior Indebtedness until the principal of (and premium,
if any) and interest on the Securities shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the holders of
such Senior Indebtedness of any cash, property or securities to which the
Securityholders or the Trustee would be entitled except for the provisions of
this Article XV, and no payment over pursuant to the provisions of this Article
XV to or for the benefit of the holders of such Senior Indebtedness by
Securityholders or the Trustee, shall, as between the Company, its creditors
other than holders of Senior Indebtedness of the Company, and the holders of the
Securities, be deemed to be a payment by the Company to or on account of such
Senior Indebtedness. It is understood that the provisions of this Article XV are
and are intended solely for the purposes of defining the relative rights of the
holders of the Securities, on the one hand, and the holders of such Senior
Indebtedness on the other hand.
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Nothing contained in this Article XV or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness of the Company, and the
holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Securities the principal of (and
premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the holders of the Securities and creditors
of the Company, as the case may be, other than the holders of Senior
Indebtedness of the Company, as the case may be, nor shall anything herein or
therein prevent the Trustee or the holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under the Indenture,
subject to the rights, if any, under this Article XV of the holders of such
Senior Indebtedness in respect of cash, property or securities of the Company,
as the case may be, received upon the exercise of any such remedy.
SECTION 15.5. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance thereof authorizes
and directs the Trustee on such Securityholder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination provided in this
Article XV and appoints the Trustee such Securityholder's attorney-in-fact for
any and all such purposes.
SECTION 15.6. Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer of
the Trustee of any fact known to the Company that would prohibit the making of
any payment of monies to or by the Trustee in respect of the Securities pursuant
to the provisions of this Article XV. Notwithstanding the provisions of this
Article XV or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article XV, unless and until a
Responsible Officer of the Trustee assigned to its Principal Office shall have
received written notice thereof from the Company or a holder or holders of
Senior Indebtedness or from any trustee therefor or representative thereof; and
before the receipt of any such written notice, the Trustee, subject to the
provisions of Article VI of this Indenture, shall be entitled in all respects to
assume that no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section 15.6 at least two
Business Days prior to the date (i) upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of
the principal of (or premium, if any) or interest on any Security), or (ii)
moneys and/or U.S. Government Obligations are deposited in trust pursuant to
Article XI then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money and U.S.
Government Obligations and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
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The Trustee, subject to the provisions of Article VI of this Indenture,
shall be entitled to conclusively rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Senior Indebtedness of the
Company (or a trustee or representative on behalf of such holder) to establish
that such notice has been given by a holder of such Senior Indebtedness or a
trustee or representative on behalf of any such holder or holders. In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of such Senior Indebtedness to
participate in any payment or distribution pursuant to this Article XV, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article XV, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
Upon any payment or distribution of assets of the Company referred to in
this Article XV, the Trustee and the Securityholders shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the
Securityholders, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XV.
SECTION 15.7. Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article XV in respect of any Senior Indebtedness at any time
held by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article XV, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and, subject to the
provisions of Article VI of this Indenture, the Trustee shall not be liable to
any holder of Senior Indebtedness if it shall pay over or deliver to
Securityholders, the Company or any other Person money or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this Article XV or
otherwise.
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Nothing in this Article XV shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.6.
SECTION 15.8. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
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
otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Securityholders, without
incurring responsibility to the Securityholders and without impairing or
releasing the subordination provided in this Article XV or the obligations
hereunder of the holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.1. Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing, the Company
shall have the right, at any time and from time to time during the term of the
Securities, to defer payments of interest by extending the interest payment
period of such Securities for a period not exceeding 20 consecutive quarters,
including the first such quarter during such extension period (the "Extension
Period"), during which Extension Period no interest shall be due and payable;
provided that no Extension Period shall end on a date other than an Interest
Payment Date or extend beyond the Maturity Date. To the extent permitted by
applicable law, interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section 16.1, will
bear interest thereon at the Coupon Rate compounded quarterly, to the extent
permitted by applicable law, for each quarter of the Extension Period
("Compounded Interest"). At the end of the Extension Period, the Company shall
pay all
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interest accrued and unpaid on the Securities, including any Additional Interest
and Compounded Interest (together, "Deferred Interest") that shall be payable to
the holders of the Securities in whose names the Securities are registered in
the Security Register on the first record date preceding the end of the
Extension Period. Before the termination of any Extension Period, the Company
may further defer payments of interest by further extending such period,
provided that such period, together with all such previous and further
extensions within such Extension Period, shall not exceed 20 consecutive
quarters, including the first such quarter during such Extension Period, or
extend beyond the Maturity Date. Upon the termination of any Extension Period
and the payment of all Deferred Interest then due, the Company may commence a
new Extension Period, subject to the foregoing requirements. No interest shall
be due and payable during an Extension Period, except at the end thereof, but
the Company may prepay at any time all or any portion of the interest accrued
during an Extension Period.
SECTION 16.2. Notice of Extension.
(a) If the Property Trustee is the only registered holder of the
Securities at the time the Company selects an Extension Period, the Company
shall give written notice to the Administrators, the Property Trustee and the
Trustee of its selection of such Extension Period five Business Days before the
earlier of (i) the next succeeding date on which Distributions on the Trust
Securities issued by NYB Trust are payable, or (ii) the date NYB Trust is
required to give notice of the record date, or the date such Distributions are
payable, to any national securities exchange or to holders of the Capital
Securities issued by NYB Trust, but in any event at least five Business Days
before such record date.
(b) If the Property Trustee is not the only holder of the Securities at
the time the Company selects an Extension Period, the Company shall give the
holders of the Securities and the Trustee written notice of its selection of
such Extension Period at least 10 Business Days before the earlier of (i) the
next succeeding Interest Payment Date, or (ii) the date the Company is required
to give notice of the record or payment date of such interest payment to any
national securities exchange.
(c) The quarter in which any notice is given pursuant to paragraphs (a) or
(b) of this Section 16.2 shall be counted as one of the 20 quarters permitted in
the maximum Extension Period permitted under Section 16.1.
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ARTICLE XVII
CONVERSION OF SECURITIES
SECTION 17.1. Conversion Rights.
Subject to and upon compliance with the provisions of this Article XVII,
the Securities are convertible, at the option of the holder, at any time on or
before 5:00 p.m. (New York City time) on the earlier of (i) the Business Day
immediately preceding the date of repayment of such Securities, whether at
maturity or upon prepayment, and (ii) the Conversion Termination Date of the
Securities, into fully paid and nonassessable shares of Common Stock at a per
share conversion price equal to 110% of the average of the daily last reported
sales prices of the Common Stock for the 10 consecutive days immediately
preceding the date of the prospectus used in connection with the Public
Offering, or, in the event all of the Capital Securities are sold in the
Subscription Offering, for the 10 consecutive trading days immediately preceding
the expiration date (as such date may be extended) of the Subscription Offering,
in each case as reported on the New York Stock Exchange, Inc. ("NYSE") Composite
Tape, subject to adjustment as described in this Article XVII (as so adjusted,
the "Conversion Price"). A holder of Securities may convert any portion of the
principal amount of the Securities into that number of fully paid and
nonassessable shares of Common Stock (calculated as to each conversion to the
nearest 1/100th of a share) obtained by dividing the principal amount of the
Securities to be converted by the Conversion Price. In case a Security or
portion thereof is called for prepayment, such conversion right in respect of
the Security or portion so called shall expire at 5:00 p.m. (New York City time)
on the Business Day immediately preceding the corresponding Prepayment Date,
unless the Company defaults in making the payment due upon prepayment.
SECTION 17.2. Conversion Procedures.
(a) To convert all or a portion of the Securities, the holder thereof
shall deliver to the Conversion Agent an irrevocable Notice of Conversion
Request setting forth the principal amount of Securities to be converted,
together with the name or names, if other than the holder, in which the shares
of Common Stock should be issued upon conversion and, if such Securities are
definitive Securities, surrender to the Conversion Agent the Securities to be
converted, duly endorsed or assigned to the Company or in blank. In addition, a
holder of Capital Securities may exercise its right under the Declaration to
exchange such Capital Securities into Securities which will be converted into
Common Stock by delivering to the Conversion Agent an irrevocable Conversion
Request setting forth the information called for by the preceding sentence and
directing the Conversion Agent (i) to exchange such Capital Security for a
portion of the Securities held by the NYB Trust (at an exchange rate of $25
principal amount of Securities for each Capital Security) and (ii) to
immediately convert such Securities, on behalf of such holder, into Common Stock
pursuant to this Article XVII and, if such Capital Securities are in definitive
form, surrendering such Capital Securities, duly
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endorsed or assigned to the
Company or in blank. So long as any Capital Securities are outstanding, NYB
Trust shall not convert any Securities except pursuant to a Conversion Request
delivered to the Conversion Agent by a holder of Capital Securities.
Holders of Securities at 5:00 p.m. (New York City time) on a record date
for a Interest Payment Date will be entitled to receive the interest payable on
such Securities on the corresponding Interest Payment Date notwithstanding the
conversion of such Securities following such record date but on or prior to such
Interest Payment Date. Except as provided in the immediately preceding sentence,
the Company will not make, or be required to make, any payment, allowance or
adjustment for accumulated and unpaid interest, whether or not in arrears, on
converted Securities; provided, however, that if notice of prepayment of
Securities is mailed or otherwise given to holders of Securities or the NYB
Trust issues a press release announcing a Conversion Termination Date, then, if
any holder of Securities converts any Securities into Common Stock on any date
on or after the date on which such notice of prepayment is mailed or otherwise
given or the date of such press release, as the case may be, and if such date of
conversion falls on any day from and including the first day of an Extension
Period and on or prior to the Interest Payment Date upon which such Extension
Period ends, such converting holder shall be entitled to receive either (i) if
the date of such conversion falls after a record date and on or prior to the
next succeeding Interest Payment Date, all accrued and unpaid interest on such
Securities (including interest thereon, if any, to the extent permitted by
applicable law) to such Interest Payment Date or (ii) if the date of such
conversion does not fall on a date described in clause (i) above, all accrued
and unpaid interest on such Securities (including interest thereon, if any, to
the extent permitted by applicable law) to the most recent Interest Payment Date
prior to the date of such conversion, which interest shall, in either such case,
be paid to such converting holder unless the date of conversion of such
Securities is on or prior to the Interest Payment Date upon which such Extension
Period ends and after the record date for such Interest Payment Date, in which
case such interest shall be paid to the person who was the holder of such
Securities (or one or more predecessor Securities) at 5:00 p.m. (New York City
time) on such record date. Except as otherwise set forth above in this
paragraph, in the case of any Security which is converted, interest whose Stated
Maturity is after the date of conversion of such Security shall not be payable,
and the Company shall not make nor be required to make any other payment,
adjustment or allowance with respect to accrued but unpaid interest (including
Compounded Interest and Additional Interest, if any) on the Securities being
converted, which shall be deemed to be paid in full. If any Security called for
prepayment is converted, any money deposited with the Trustee or with any paying
agent or so segregated and held in trust for the prepayment of such Security
shall (subject to say right of the holder of such Security or any Predecessor
Security to receive interest as provided in this Indenture) be paid to the
Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
Each conversion shall be deemed to have been effected immediately prior to
5:00 p.m. (New York City time) on the day on which the Notice of Conversion was
received (the "Conversion Date") by the Conversion Agent from the Securityholder
or from a holder of the
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Capital Securities effecting a conversion thereof pursuant to its conversion
rights under the Declaration, as the case may be. The Person or Persons entitled
to receive the Common Stock issuable upon such conversion shall be treated for
all purposes as a record holder or holders of such Common Stock as of the
Conversion Date. As promptly as practicable on or after the Conversion Date, the
Company shall issue and deliver at the office of the Conversion Agent, unless
otherwise directed by the Securityholder in the Notice of Conversion, a
certificate or certificates for the number of full shares of Common Stock
issuable upon such conversion, together with the cash payment, if any, in lieu
of any fraction of any share to the Person or Persons entitled to receive the
same. The Conversion Agent shall deliver such certificate or certificates to
each Person or Persons.
(b) Subject to any right of the holder of such Security or any Predecessor
Security to receive interest as provided in Section 17.2(a), the Company's
delivery upon conversion of the fixed number of shares of Common Stock into
which the Securities are convertible (together with the cash payment, if any, in
lieu of fractional shares) shall be deemed to satisfy the Company's obligation
to pay the principal amount at maturity of the portion of Securities so
converted and any unpaid interest (including Compounded Interest and Additional
Interest, if any) accrued on such Securities at the time of such conversion.
(c) No fractional shares of Common Stock will be issued as a result of
conversion, but in lieu thereof, the Company shall pay to the Conversion Agent a
cash adjustment in an amount equal to the same fraction of the Closing Price of
such fractional interest on the date on which the Securities or Capital
Securities, as the case may be, were duly surrendered to the Conversion Agent
for conversion, or, if such day is not a Trading Day, on the next Trading Day,
and the Conversion Agent in turn will make such payment, if any, to the holder
of the Securities or the holder of the Capital Securities so converted.
(d) In the event of the conversion of any Security in part only, a new
Security or Securities for the unconverted portion thereof will be issued in the
name of the holder thereof upon the cancellation thereof in accordance with
Section 2.7.
(e) In effecting the conversion transactions described in this Section,
the Conversion Agent is acting as agent of the holders of Capital Securities (in
the exchange of Capital Securities for Securities) and as agent of the holders
of Securities (in the conversion of Securities into Common Stock), as the case
may be, directing it to effect such conversion transactions. The Conversion
Agent is hereby authorized (i) to exchange Capital Securities for Securities
held by NYB Trust from time to time in connection with the conversion of such
Capital Securities in accordance with this Article XVII and (ii) to convert all
or a portion of the Securities into Common Stock and thereupon to deliver such
shares of Common Stock in accordance with the provisions of this Article XVII
and to deliver to the NYB Trust a new Security or Securities for any resulting
unconverted principal amount.
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SECTION 17.3. Conversion Price Adjustments.
The conversion price shall be subject to adjustment (without duplication)
from time to time as follows:
(a) In case the Company shall, while any of the Securities are
outstanding, (i) pay a dividend or make a distribution with respect to its
Common Stock in shares of Common Stock, (ii) subdivide its outstanding shares of
Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares or (iv) issue by reclassification of its shares of
Common Stock any shares of capital stock of the Company, the Conversion Price in
effect immediately prior to such action shall be adjusted so that the holder of
any Securities thereafter surrendered for conversion shall be entitled to
receive the number of shares of capital stock of the Company which he would have
owned immediately following such action had such Securities been converted
immediately prior thereto. An adjustment made pursuant to this Section 17.3(a)
shall become effective immediately after the record date in the case of a
dividend or other distribution and shall become effective immediately after the
effective date in case of a subdivision, combination or reclassification (or
immediately after the record date if a record date shall have been established
for such event). If, as a result of an adjustment made pursuant to this Section
17.3(a), the holder of any Security thereafter surrendered for conversion shall
become entitled to receive shares of two or more classes or series of capital
stock of the Company, the Board of Directors (whose determination shall be
conclusive and shall be described in a resolution of the Board of Directors
filed with the Trustee) shall determine the allocation of the adjusted
Conversion Price between or among shares of such classes or series of capital
stock.
(b) In case the Company shall, while any of the Securities are
outstanding, issue rights or warrants to all holders of its Common Stock
entitling them (for a period expiring within 45 days after the record date
mentioned in this Section 17.3(b)) to subscribe for or purchase shares of Common
Stock at a price per share less than the Current Market Price per share of
Common Stock (as defined in 17.3(f) below) on such record date, the Conversion
Price for the Securities shall be adjusted so that the same shall equal the
price determined by multiplying the Conversion Price in effect immediately prior
to the date of issuance of such rights or warrants by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding on the date
of issuance of such rights or warrants plus the number of shares which the
aggregate offering price of the total number of shares so offered for
subscription or purchase would purchase at such Current Market Price, and of
which the denominator shall be the number of shares of Common Stock outstanding
on the date of issuance of such rights or warrants plus the number of additional
shares of Common Stock offered for subscription or purchase. Such adjustment
shall become effective immediately after the record date for the determination
of stockholders entitled to receive such rights or warrants. For the purposes of
this subsection, the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company. The Company shall
not issue any rights or warrants in respect of the shares of Common Stock held
in the
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treasury of the Company. In case any rights or warrants referred to in this
subsection in respect of which an adjustment shall have been made shall expire
unexercised within 45 days after the same shall have been distributed or issued
by the Company, the Conversion Price shall be readjusted at the time of such
expiration to the Conversion Price that would have been in effect if no
adjustment had been made on account of the distribution or issuance of such
expired rights or warrants.
(c) Subject to the last sentence of this Section 17.3(c), in case the
Company shall, by dividend or otherwise, distribute to all holders of its Common
Stock evidences of its indebtedness, shares of any class or series of capital
stock, cash or assets (including securities, but excluding any rights or
warrants referred to in Section 17.3(b), any dividend or distribution paid
exclusively in cash and any dividend or distribution referred to in Section 17.3
(a)), the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect immediately prior
to the effectiveness of the Conversion Price reduction contemplated by Section
17.3(c) by a fraction of which the numerator shall be the Current Market Price
per share of the Common Stock on the date fixed for the payment of such
distribution (the "Reference Date") less the fair market value (as determined in
good faith by the Board of Directors, whose determination shall be conclusive
and described in a resolution of the Board of Directors), on the Reference Date,
of the portion of the evidences of indebtedness, shares of capital stock, cash
and assets so distributed applicable to one share of Common Stock and the
denominator shall be such Current Market Price per share of the Common Stock,
such reduction to become effective immediately prior to the opening of business
on the day following the Reference Date. In the event that such dividend or
distribution is not so paid or made, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if such
dividend or distribution had not occurred. If the Board of Directors determines
the fair market value of any distribution for purposes of this Section 17.3(c)
by reference to the actual or when issued trading market for any securities
comprising such distribution, it must in doing so consider the prices in such
market over the same period used in computing the Current Market Price per share
of Common Stock. For purposes of this Section 17.3(c), any dividend or
distribution that includes shares of Common Stock or rights or warrants to
subscribe for or purchase shares of Common Stock shall be deemed instead to be
(1) a dividend or distribution of the evidences of indebtedness, shares of
capital stock, cash or assets other than such shares of Common Stock or such
rights or warrants (making any Conversion Price reduction required by this
Section 17.3(c)) immediately followed by (2) a dividend or distribution of such
shares of Common Stock or such rights or warrants (making any further Conversion
Price reduction required by Section 17.3(a) or 17.3 (b)), except (A) the
Reference Date of such dividend or distribution as defined in this Section
17.3(c) shall be substituted as (a) "the record date in the case of a dividend
or other distribution," and (b) "the record date for the determination of
stockholders entitled to receive such rights or warrants" and (c) "the date
fixed for such determination" within the meaning of Sections 17.3(a) and 17.3(b)
and (B) any shares of Common Stock included in such dividend or distribution
shall not be deemed outstanding for purposes of computing any adjustment of the
Conversion Price in Section 17.3(a).
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(d) In case the Company shall pay or make a dividend or other distribution
on its Common Stock exclusively in cash (excluding all regular cash dividends,
if the annualized amount thereof per share of Common Stock does not exceed 15%
of the Current Market Price per share of the Common Stock on the Trading Day
immediately preceding the date of declaration of such dividend), the Conversion
Price shall be reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction contemplated by this Section
17.3(d) by a fraction of which the numerator shall be the Current Market Price
per share of the Common Stock on the date fixed for the payment of such
distribution less the amount of cash so distributed and not excluded as provided
applicable to one share of Common Stock and the denominator shall be such
Current Market Price per share of the Common Stock, such reduction to become
effective immediately prior to the opening of business on the day following the
date fixed for the payment of such distribution; provided, however, that in the
event the portion of the cash so distributed applicable to one share of Common
Stock is equal to or greater than the Current Market Price per share of the
Common Stock on the record date mentioned above, in lieu of the foregoing
adjustment, adequate provision shall be made so that each holder of Securities
shall have the right to receive upon conversion the amount of cash such holder
would have received had such holder converted each Security immediately prior to
the record date for the distribution of the cash. In the event that such
dividend or distribution is not so paid or made, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in effect if
such record date had not been fixed.
(e) In case a tender or exchange offer (other than an odd-lot offer) made
by the Company or any subsidiary of the Company for all or any portion of the
Common Stock shall expire and such tender or exchange offer shall involve the
payment by the Company or such subsidiary of consideration per share of Common
Stock having a fair market value (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a resolution
of the Board of Directors) at the last time (the "Expiration Time") tenders or
exchanges may be made pursuant to such tender or exchange offer (as it shall
have been amended) that exceeds 110% of the Current Market Price per share of
Common Stock on the Trading Day next succeeding the Expiration Time, the
Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the effectiveness of the Conversion Price reduction contemplated by this Section
17.3(e) by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding (including any tendered or exchanged shares) at the
Expiration Time multiplied by the Current Market Price per share of the Common
Stock on the Trading Day next succeeding the Expiration Time and the denominator
shall be the sum of (x) the fair market value (determined as aforesaid) of the
aggregate consideration payable to stockholders based on the acceptance (up to
any maximum specified in the terms of the tender or exchange offer) of all
shares validly tendered or exchanged and not withdrawn as of the Expiration Time
(the shares deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of the number of shares of Common Stock
outstanding (less any Purchased Shares) at the Expiration Time and
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the Current Market Price per share of the Common Stock on the Trading Day next
succeeding the Expiration Time, such reduction to become effective immediately
prior to the opening of business on the day following the Expiration Time.
(f) For the purpose of any computation under Sections 17.3(b), (c), (d) or
(e), the "Current Market Price" per share of Common Stock on any date in
question shall be deemed to be the average of the daily Closing Prices for the
five consecutive Trading Days selected by the Company commencing not more than
20 Trading Days before, and ending not later than, the earlier of the day in
question or, if applicable, the day before the "ex" date with respect to the
issuance or distribution requiring such computation; provided, however, that if
another event occurs that would require an adjustment pursuant to Sections
17.3(a) through (e), inclusive, the Board of Directors may make such adjustments
to the Closing Prices during such five Trading Day period as it deems
appropriate to effectuate the intent of the adjustments in this Section 17.3, in
which case any such determination by the Board of Directors shall be set forth
in a resolution of the Board of Directors and shall be conclusive. For purposes
of this paragraph, the term "ex" date, (i) when used with respect to any
issuance or distribution, means the first date on which the Common Stock trades
regular way on the NYSE or on such successor securities exchange as the Common
Stock may be listed or in the relevant market from which the Closing Prices were
obtained without the right to receive such issuance or distribution, and (ii)
when used with respect to any tender or exchange offer, means the first date on
which the Common Stock trades regular way on such securities exchange or in such
market after the Expiration Time of such offer.
(g) The Company may make such reductions in the Conversion Price, in
addition to those required by Sections (a) through (e), as it considers to be
advisable to avoid or diminish any income tax to holders of Common Stock or
rights to purchase Common Stock resulting from any dividend or distribution of
stock (or rights to acquire stock) or from any event treated as such for income
tax purposes. The Company from time to time may reduce the Conversion Price by
any amount for any period of time if the period is at least 20 days, the
reduction is irrevocable during the period, and the Board of Directors of the
Company shall have made a determination that such reduction would be in the best
interest of the Company, which determination shall be conclusive. Whenever the
Conversion Price is reduced pursuant to the preceding sentence, the Company
shall mail to holders of record of the Securities a notice of the reduction at
least 15 days prior to the date the reduced Conversion Price takes effect, and
such notice shall state the reduced Conversion Price and the period it will be
in effect.
(h) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Conversion Price; provided, however, that any adjustments which by reason of
this Section 17.3(h) are not required to be made shall be carried forward and
taken into account in determining whether any subsequent adjustment shall be
required.
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(i) If any action would require adjustment of the Conversion Price
pursuant to more than one of the provisions described above, only one adjustment
shall be made and such adjustment shall be the amount of adjustment that has the
highest absolute value to the holder of the Securities.
SECTION 17.4. Reclassification, Consolidation, Merger or Sale of Assets.
In the event that the Company shall be a party to any transaction,
including without limitation (a) any recapitalization or reclassification of the
Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination of the Common Stock), (b) any consolidation of the Company with, or
merger of the Company into any other Person, any merger of another Person into
the Company (other than a merger which does not result in a reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock of
the Company), (c) any sale, transfer or lease of all or substantially all of the
assets of the Company or (d) any compulsory share exchange, in each case
pursuant to which the Common Stock is converted into the right to receive other
securities, cash or other property, then lawful provision shall be made as part
of the terms of such transaction whereby the holder of each Security then
outstanding shall have the right thereafter to convert each Security only into
the kind and amount of securities, cash or other property receivable upon
consummation of such transaction by a holder of the number of shares of Common
Stock of the Company into which such Security could have been converted
immediately prior to such transaction.
The Company or the Person formed by such consolidation or resulting from
such merger or which acquired such assets or which acquires the Company's
shares, as the case may be, shall make provision in its certificate or articles
of incorporation or other constituent document to establish such right. Such
certificate or articles of incorporation or other constituent document shall
provide for adjustments which, for events subsequent to the effective date of
such certificate or articles of incorporation or other constitution document,
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article XVII. The above provisions shall similarly apply to
successive transactions of the foregoing type.
SECTION 17.5. Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided:
(a) The Company shall compute the adjusted Conversion Price and shall
prepare a certificate signed by the Chief Financial Officer or the Treasurer of
the Company setting forth the adjusted Conversion Price and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Trustee, the Conversion Agent and
the transfer agent for the Capital Securities and the Securities; and
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(b) notice stating the Conversion Price has been adjusted and setting
forth the adjusted Conversion Price shall as soon as practicable be mailed by
the Company to all record holders of Capital Securities and the Securities at
their last addresses as they appear upon the stock transfer books of the Company
and the Trust.
SECTION 17.6. Prior Notice of Certain Events.
In case:
(a) the Company shall (i) declare any dividend (or any other distribution)
on its Common Stock, other than (A) a dividend payable in shares of Common Stock
or (B) a dividend payable in cash that would not require an adjustment pursuant
to Section 17.3(c) or (d), or (ii) authorize a tender or exchange offer that
would require an adjustment pursuant to Section 17.3(e);
(b) the Company shall authorize the granting to all holders of Common
Stock of rights or warrants to subscribe for or purchase any shares of stock of
any class or series or of any other rights or warrants;
(c) of any reclassification of Common Stock (other than a subdivision or
combination of the outstanding Common Stock, or a change in par value, or from
par value to no par value, or from no par value to par value), or of any
consolidation or merger to which the Company is a party and for which approval
of any stockholders of the Company shall be required, or the sale or transfer of
all or substantially all of the assets of the Company or of any compulsory share
exchange whereby the Common Stock is converted into other securities, cash or
other property; or
(d) of the voluntary or involuntary dissolution, liquidation or winding up
of the Company;
then the Company shall (1) if any Capital Securities are outstanding, cause to
be filed with the transfer agent for the Capital Securities, and shall cause to
be mailed to the holders of record of the Capital Securities, at their last
addresses as they shall appear upon the stock transfer books the NYB Trust or
(2) shall cause to be mailed to all Securityholders at their last addresses as
they shall appear in the Security Register, at least 15 days prior to the
applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record (if any) is to be taken for the purpose of such
dividend, distribution, rights or warrants or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, rights or warrants are to be determined or (y) the
date on which such reclassification, consolidation, merger, sale, transfer,
share exchange, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such
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reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the validity of the
corporate action required to be specified in such notice).
Section 17.7. Certain Defined Terms.
The following definitions shall apply to terms used in this Article VII:
(a) "Closing Prices" of any Security shall on any day shall mean the last
reported sale price for such security, regular way, or such day or, if no sale
takes place on such day, the average of the reported closing bid and asked
prices on such day, regular way, of such Security, in either case as reported on
the NYSE Composite Tape or, if the Security is not listed or admitted to trading
on the NYSE, on the principal national securities exchange on which such
Security is listed or admitted to trading, or, if not listed or admitted to
trading on a national securities exchange, on the National Market System of the
National Association of Securities Dealers, Inc. or, if such Security is not
quoted or admitted to trading on such quotation system, on the principal
quotation system on which such Security is listed or admitted to trading or
quoted, or, if not listed or admitted to trading or quoted on any national
securities exchange or quotation system, the average of the closing bid and
asked prices of such Security in the over-the-counter market on the day in
question as reported by the National Quotation Bureau Incorporated, or a similar
generally accepted reporting service, or, if not so available in such manner, as
furnished by any NYSE member firm selected from time to time by the Board of
Directors for that purpose or, if not so available in such manner, as otherwise
determined in good faith by the Board of Directors.
(b) "Trading Day" shall mean a day on which securities are traded on the
national securities exchange or quotation system used to determine the Closing
Price.
Section 17.8. Dividend or Interest Reinvestment Plans.
Notwithstanding the foregoing provisions, the issuance of any shares of
Common Stock pursuant to any plan providing for the reinvestment of dividends or
interest payable on securities of the Company and the investment of additional
optional amounts in shares of Common Stock under any such plan, and the issuance
of any shares of Common Stock or options or rights to purchase such shares
pursuant to any employee benefit plan or program of the Company pursuant to any
option, warrant, right or exercisable, exchangeable or convertible security
outstanding as of the date the Securities were first issued, shall not be deemed
to constitute an issuance of Common Stock or exercisable, exchangeable or
convertible securities by the Company to which any of the adjustment provisions
described above applies. There shall also be no adjustment of the Conversion
Price in case of the issuance of any stock (or securities convertible into or
exchangeable for stock) of the Company except as specifically described in this
Article XVII.
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Section 17.9. Certain Additional Rights.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on its Common Stock referred to in Section 17.3(c) or (d)
(including, without limitation, dividends or distributions referred to in the
last sentence of Section 17.3(c)), the holder of the Securities, upon the
conversion thereof subsequent to 5:00 p.m. (New York City time) on the date
fixed for the determination of stockholders entitled to receive such
distribution and prior to the effectiveness of the Conversion Price adjustment
in respect of such distribution, shall also be entitled to receive for each
share of Common stock into which the Securities are converted, the portion of
the shares of Common Stock, rights, warrants, evidences of indebtedness, shares
of capital stock, cash and assets so distributed applicable to one share of
Common Stock; provided, however, that, at the election of the Company (whose
election shall be evidenced by a resolution of the Board of Directors) with
respect to all Securityholders so converting, the Company may, in lieu of
distributing to such holder any portion of such distribution not consisting of
cash or securities of the Company, pay such holder an amount in cash equal to
the fair market value thereof (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a resolution
of the Board of Directors). If any conversion of Securities described in the
immediately preceding sentence occurs prior to the payment date for a
distribution to holders of Common Stock which the holder of Securities so
converted is entitled to receive in accordance with the immediately preceding
sentence, the Company may elect (such election to be evidenced by a resolution
of the Board of Directors) to distribute to such holder a due bill for the
shares of Common Stock, rights, warrants, evidences of indebtedness, shares of
capital stock, cash or assets to which such holder is so entitled, provided,
that such due bill (i) meets any applicable requirements of the principal
national securities exchange or other market on which the Common Stock is then
traded and (ii) requires payment or delivery of such shares of Common Stock,
rights, warrants, evidences of indebtedness, shares of capital stock, cash or
assets no later than the date of payment or delivery thereof to holders of
shares of Common Stock receiving such distribution.
Section 17.10. Trustee Not Responsible for Determining Conversion Price or
Adjustments.
Neither the Trustee nor any Conversion Agent shall at any time be under
any duty or responsibility to any holder or any Security to determine whether
any facts exist which may require any adjustment of the Conversion Price, or
with respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee nor any
Conversion Agent shall be accountable with respect to the validity or value (or
the kind of account) of any shares of Common Stock or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any Security; and neither the Trustee nor any Conversion Agent makes any
representation with respect thereto. Neither the Trustee nor any Conversion
Agent shall be responsible for any failure of the Company to make any cash
payment or to issue, transfer or deliver any shares of Common Stock or stock
certificates or
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other securities or property upon the surrender of any Security for the purpose
of conversion, or, except as expressly herein provided, to comply with any of
the covenants of the Company contained in Article III or Article XVII.
Section 17.11. Expiration of Conversion Rights.
(a) Right of Company to Terminate Conversion Rights. On and after October
31, 2001, the Company may, at its option, cause the conversion rights of holders
of Securities to terminate if (i) the Company is then current in the payment of
interest on the Securities (including Compounded Interest and Additional
Interest, if any) (except to the extent that the payment of interest may have
been deferred as a result of any Extension Period) and (ii) for at least 20
Trading Days within any period of 30 consecutive Trading Days, including the
last Trading Day of such period, the Closing Price of the Common Stock shall
have exceeded 110% of the Conversion Price of the Securities then in effect.
(b) Exercise of Option Prior to a Dissolution Event Distribution. To
exercise its conversion expiration option prior to the distribution of
Securities from NYB Trust to the holders of Capital Securities upon the
occurrence of a Dissolution Event (a "Dissolution Event Distribution"), the
Company shall give written notice to NYB Trust directing NYB Trust to issue the
Press Release (as defined in Section 5(h) of Annex I of the Declaration), to
cause the conversion rights of the holders of Capital Securities to expire. The
Company shall also furnish a copy of such notice to the Trustee (and the
Conversion Agent if the Trustee is not then serving as the Conversion Agent). If
NYB Trust fails to issue the Press Release within two (2) Business Days after
its receipt of such notice, the Company may, on behalf of NYB Trust, issue the
Press Release in accordance with the provisions of Section 5(h) of Annex I of
the Declaration. The conversion rights of the holders of the Securities shall
terminate simultaneously with the termination of the conversion rights of the
holders of the Capital Securities.
(c) Exercise of Option After a Dissolution Event Distribution. To exercise
its conversion expiration option after a Dissolution Event Distribution, the
Company shall issue a press release for publication on the Dow Jones News
Service or on a comparable news service announcing the Conversion Termination
Date of the Securities. Such press release must be issued prior to the opening
of business on the second Trading Day after a period in which the conditions of
Section 17.11(a) have been met, but in no event prior to October 31, 2001. Such
press release shall state that the Company has elected to exercise its right to
terminate the conversion privilege, specify the Conversion Termination Date of
the Securities (as determined in the manner set forth below) and provide the
Conversion Price and the Closing Price of Common Stock, in each case as of the
close of business on the Trading Day next preceding the date of the press
release. Additionally, the Company shall cause a notice of the expiration of
conversion rights (a "Notice of Conversion Termination") to be given by
first-class mail to the holder of Securities, the Trustee (and the Conversion
Agent if the Trustee is not then serving as the Conversion Agent) not more than
four Business Days after the Company issues the press
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release. The Notice of Conversion Termination shall state, as appropriate: (i)
the Conversion Termination Date of the Securities; (ii) the Conversion Price of
the Securities and the Closing Price of the Common Stock, in each case as of the
close of business on the Trading Day next preceding the date of the Notice of
Conversion Termination; (iii) the place or places at which a conversion notice
with respect to Securities may be given to the Conversion Agent in accordance
with Section 17.2 prior to the Conversion Termination Date of the Securities;
and (iv) such other information or instructions as the Company deems necessary
or advisable to enable Securityholder to exercise its conversion right
hereunder. Notice of Conversion Termination shall be deemed to have been given
on the day such notice is first mailed by first-class mail, postage prepaid, to
each holder of Securities at the address of the holder appearing in the Security
Register (whether or not the Securityholder receives the Notice of Conversion
Termination). No defect in the Notice of Conversion Termination or in the
mailing thereof with respect to any Securities shall affect the validity of the
Company's exercise of its conversion expiration option if the press release
referred to above shall have been issued.
(d) Certain Definitions. The term "Conversion Termination Date" has the
meaning assigned to such term in Section 5(h) of Annex I of the Declaration. The
"Conversion Termination Date of the Securities" shall be the close of business
on the Business Day selected by the Company which is not less than 30 nor more
than 60 calendar days after (1) the date on which NYB Trust issues the Press
Release announcing NYB Trust's intention to terminate the conversion rights of
the holders of the Capital Securities or (2) the date the Company issues the
press release required by Section 17.11(c) announcing its intention to terminate
the conversion rights of the holders of the Securities, as the case may be. If
the Company does not exercise its conversion expiration option, the Conversion
Termination Date of the Securities (i) with respect to any principal amount of
Securities which is called for repayment shall be the close of business on the
Business Day prior to the scheduled date for such repayment and (ii) in any
other case shall be the close of business on the Business Day prior to the
Maturity Date of the Securities. As of the close of business on the earlier of
the Conversion Termination Date or the Conversion Termination Date of the
Securities, the Securities shall be deemed to be non-convertible securities.
The Bank of New York hereby accepts the trusts in this Indenture declared
and provided, upon the terms and conditions hereinabove set forth.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers thereunto duly authorized, as of the
day and year first above written.
NEW YORK BANCORP INC.
By
----------------------------------------
Michael A. McManus, Jr.
President and Chief Executive Officer
THE BANK OF NEW YORK
as Trustee
By
----------------------------------------
----------------------------
Authorized Signatory
<PAGE>
EXHIBIT A
(FORM OF FACE OF SECURITY)
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT: -- THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A 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
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
A-1
<PAGE>
$-------------
No. CUSIP No. ______________
NEW YORK BANCORP INC.
8.00% JUNIOR CONVERTIBLE SUBORDINATED DEBENTURE
DUE OCTOBER 31, 2027
New York Bancorp Inc., a Delaware corporation (the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _________ or registered assigns, the
principal sum of _____________ Dollars on October 31, 2027 (the "Maturity
Date"), unless previously prepaid, and to pay interest on the outstanding
principal amount hereof from _______________, 1997, or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on January 31, April 30, July 31 and October 31 of
each year, commencing January 31, 1998 at the rate of 8.00% per annum until the
principal hereof shall have become due and payable, and at the same rate per
annum on any overdue principal and premium, if any, and (without duplication and
to the extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the same rate per annum compounded
quarterly. The amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months and, for any
period less than a full calendar month, the number of days elapsed in such
month. In the event that any date on which the principal of (or premium, if any)
or interest on this Security is payable is not a Business Day, then the payment
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay)
except that if such next succeeding Business Day falls in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, with the same force and effect as if made on such date.
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 said Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be the fifteenth
day of the month in which the relevant Interest Payment Date falls. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the holders on such regular record date and may be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a special record date to
be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the holders of Securities not less than 10 days prior
to such special record date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture.
A-2
<PAGE>
The principal of (and premium, if any) and interest on this Security shall
be payable at the office or agency of the Trustee maintained for that purpose in
any coin or currency of the United States of America that at the time of payment
is legal tender for payment of public and private debts; provided, however,
that, payment of interest may be made at the option of the Company by (i) check
mailed to the holder entitled thereto at such address as shall appear in the
Security Register or (ii) by wire transfer to an account maintained by the
Person entitled thereto, provided that proper written wire transfer instructions
have been received by the paying agent by the relevant record date.
Notwithstanding the foregoing, so long as the holder of this Security is the
Property Trustee, the payment of the principal of (and premium, if any) and
interest on this Security will be made at such place and to such account as may
be designated by the Property Trustee.
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 Allocable Amounts in respect of Senior Indebtedness, 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
or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, or be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by or on behalf
of the Trustee.
The provisions of this Security are continued on the reverse side hereof
and such provisions shall for all purposes have the same effect as though fully
set forth at this place.
A-3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
NEW YORK BANCORP INC.
By: _______________________
Name:
Title
By: _______________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated ______________
THE BANK OF NEW YORK,
as Trustee
By ____________________
Authorized Signatory
A-4
<PAGE>
(FORM OF REVERSE OF SECURITY)
This Security is one of the Junior Convertible Subordinated Debentures of
the Company (herein sometimes referred to as the "Securities"), specified in the
Indenture, all issued or to be issued under and pursuant to an Indenture, dated
as of _______________, 1997 (the "Indenture"), duly executed and delivered
between the Company and The Bank of New York, as Trustee (the "Trustee"), to
which Indenture reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Securities.
Upon the occurrence and continuation of a Special Event, the Company shall
have the right at any time, within 90 days following the occurrence of a Special
Event, at any time prior to or after October 31, 2001 (the "Initial Optional
Prepayment Date"), to prepay this Security in whole, but not in part, at the
Special Event Prepayment Price. "Special Event Prepayment Price" shall mean,
with respect to any prepayment of the Securities following a Special Event, an
amount in cash equal to 100% of the principal amount to be prepaid plus any
accrued and unpaid interest thereon, including Compounded Interest and
Additional Interest, if any, to the date of such prepayment.
In addition, the Company shall have the right to prepay this Security, in
whole or in part, at any time on or after the Initial Optional Prepayment Date
(an "Optional Prepayment"), at an optional prepayment price (the "Optional
Prepayment Price") equal to 100% of the principal amount to be prepaid, plus
accrued and unpaid interest thereon (including Additional Interest and
Compounded Interest, if any) to the applicable date of prepayment.
The Optional Prepayment Price or the Special Event Prepayment Price, as
the case requires, shall be paid prior to 12:00 noon, New York time, on the date
of such prepayment or at such earlier time as the Company determines, provided,
that the Company shall deposit with the Trustee an amount sufficient to pay the
applicable Prepayment Price by 10:00 a.m., New York City time, on the date such
Prepayment Price is to be paid. Any prepayment pursuant to this paragraph will
be made upon not less than 30 days nor more than 60 days notice. If the
Securities are only partially prepaid by the Company pursuant to an Optional
Prepayment, the Securities will be prepaid by lot or by any other method
utilized by the Trustee; provided that if, at the time of prepayment, the
Securities are registered as a Global Security, the Depositary shall determine
in accordance with its procedures the principal amount of such Securities held
for the account of its participants to be prepaid.
In the event of prepayment of this Security in part only, a new Security
or Securities for the portion hereof not prepaid will be issued in the name of
the holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any prepayment of Securities by the Company
shall be subject to the receipt by the Company of any required regulatory
approval.
A-5
<PAGE>
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Securities may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of a majority in aggregate principal amount of
the Securities at the time outstanding, as defined in the Indenture, to execute
supplemental indentures for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Indenture or of
modifying in any manner the rights of the holders of the Securities; provided,
however, that no such supplemental indenture shall, without the consent of each
holder of Securities then outstanding and affected thereby, (i) extend the
Maturity Date of any Securities, or reduce the principal amount thereof, or
reduce any amount payable on prepayment thereof, or reduce the rate or extend
the time of payment of interest thereon (subject to Article XVI of the
Indenture), [or make the principal of, or interest or premium on, the Securities
payable in any coin or currency other than U.S. dollars, or impair or affect the
right of any holder of Securities to institute suit for the payment thereof,] or
(ii) reduce the aforesaid percentage of Securities, the holders of which are
required to consent to any such supplemental indenture. The Indenture also
contains provisions permitting the holders of a majority in aggregate principal
amount of the Securities at the time outstanding, on behalf of all of the
holders of the Securities, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture, and its consequences, except a default in the payment of the
principal of or premium, if any, or interest on any of the Securities or a
default in respect of any covenant or provision which under the Indenture cannot
be modified or amended without the consent of each holder of Securities then
outstanding. Any such consent or waiver by the holder of this Security (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
holder and upon all future holders and owners of this Security and of any
Security issued in exchange herefor or in place hereof (whether by registration
of transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Security.
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 time and place and at the rate and in the money
herein prescribed or to convert the Securities as provided in the Indenture.
The Company shall have the right, at any time and from time to time during
the term of the Securities, to defer payments of interest by extending the
interest payment period of such Securities for a period not exceeding 20
consecutive quarters, including the first such quarter during such extension
period, and not to extend beyond the Maturity Date of the Securities (an
"Extension Period"), at the end of which period the Company shall pay all
interest then accrued and unpaid (together with interest thereon at the rate
specified for the Securities to the extent that payment of such interest is
enforceable under applicable law). Before the termination of any such Extension
Period, the Company may further defer payments
A-6
<PAGE>
of interest by further extending such Extension Period, provided that such
Extension Period, together with all such previous and further extensions within
such Extension Period, shall not exceed 20 consecutive quarters, including the
first quarter during such Extension Period, and shall not end on any date other
than an Interest Payment Date or extend beyond the Maturity Date of the
Securities. Upon the termination of any such Extension Period and the payment of
all accrued and unpaid interest and any additional amounts then due, the Company
may commence a new Extension Period, subject to the foregoing requirements.
The Company has agreed 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 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 or repurchase or redeem any debt securities of the Company that
rank pari passu with or junior in right of payment to the Securities or (iii)
make any guarantee payments with respect to any guarantee by the Company of any
securities or any Subsidiary of the Company (including Other Guarantees) if such
guarantee ranks pari passu or junior in right of payment to the Securities
(other than (a) dividends or distributions in shares of, or options, warrants or
rights to subscribe for or purchase shares of, Common Stock of the Company; (b)
any declaration of a dividend in connection with the implementation of a
stockholder's 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 Capital Securities Guarantee; (d) as a direct result of, and
only to the extent required in order to avoid the issuance of fractional shares
of capital stock following a reclassification of the Company's capital stock or
the exchange or the conversion of one class or series of the Company's capital
stock for another class or series of the Company's capital stock; (e) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the exchange or conversion of such capital stock or the security
being exchanged or converted and (f) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Company's benefit plans for
its directors, officers or employees or any of the Company's dividend
reinvestment plans) if at such time (i) an Event of Default shall have occurred
and be continuing (other than solely an Event of Default under Section 5.1(c) of
the Indenture), (ii) there shall have occurred any event of which the Company
has actual knowledge that (a) is, or with the giving of notice or the lapse of
time, or both, would be, an Event of Default (other than solely an Event of
Default under Section 5.1(c) of the Indenture) and (b) in respect of which the
Company shall not have taken reasonable steps to cure, (iii) if such Securities
are held by NYB Trust, the Company shall be in default with respect to its
payment obligations under the Capital Securities Guarantee or (iv) the Company
shall have given notice of its election of the exercise of its right to extend
the interest payment period and any such extension shall be continuing.
On the terms and subject to the conditions set forth in the Indenture, the
holder of any security has the right, exercisable at any time on or before 5:00
p.m. (New York City time) on the earlier of (i) the Business Day immediately
preceding the date of repayment of such Security, whether at maturity or upon
prepayment, and (ii) the Conversion Termination Date of the Securities, if any,
to convert the principal amount thereof (or any portion thereof that is an
integral multiple of $25) into fully paid and nonassessable shares of Common
Stock of the
A-7
<PAGE>
Company at the Conversion Price prescribed in the Indenture. The number of
shares issuable upon conversion of a Security is determined by dividing the
principal amount of the Security converted by the Conversion Price in effect on
the date of conversion. No fractional shares will be issued upon conversion but
a cash adjustment will be made for any fractional interest. The outstanding
principal amount of any Security shall be reduced by the portion of the
principal amount thereof converted into shares of Common Stock. The conversion
right and the Conversion Price are subject to adjustment as provided in the
Indenture, to which reference is hereby made. Under certain circumstances
specified in the Indenture, Securityholders converting Securities may be
entitled to accrued and unpaid interest (including Compounded Interest and
Additional Interest, if any, to the extent permitted by applicable law) on such
Securities.
The conversion rights of the holders of Securities are subject to
termination at the option of the Company on and after October 31, 2001, subject
to and upon the satisfaction of certain conditions set forth in the Indenture.
The Securities are issuable only in registered form without coupons. As
provided in the Indenture and subject to the transfer restrictions limitations
as may be contained herein and therein from time to time, this Security is
transferable by the holder hereof on the Security Register of the Company, upon
surrender of this Security for registration of transfer at the office or agency
of the Company in the City and State of New York accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Security registrar duly executed by the holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities for the same
aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Security,
the Company, the Trustee, any authenticating agent, any paying agent, any
transfer agent and the registrar may deem and treat the holder hereof as the
owner hereof (whether or not this Security shall be overdue and notwithstanding
any notice of ownership or writing hereon made by anyone other than the Security
registrar) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and (subject to the Indenture) interest
due hereon and for all other purposes, and neither the Company nor the Trustee
nor any authenticating agent nor any paying agent nor any transfer agent nor any
registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or premium,
if any, or interest on this Security, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture, against
any incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor Person, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
A-8
<PAGE>
All capitalized terms used in this Security that are defined in the
Indenture but not defined herein shall have the meanings assigned to them in the
Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PROVISIONS THEREOF.
A-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfer this Security
certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignees social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
_____________________________ agent to transfer this Security certificate on the
books of the Company. 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 Security)
Signature Guarantee(1):
---------------------------------------------------------
- ------------------
1 Signature must be guaranteed by an "eligible guarantor institution" that is a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.
A-10
<PAGE>
CONVERSION REQUEST
To: New York Bancorp Inc.
The undersigned owner of these Securities hereby irrevocably exercises the
option to convert these Securities, or the portion below designated, into Common
Stock of New York Bancorp Inc. (the "Common Stock") in accordance with the terms
of the Indenture (the "Indenture"), dated as of __________ __, 1997, between the
Company and The Bank of New York, as Trustee. Pursuant to the aforementioned
exercise of the options to convert these Capital Securities, the undersigned
hereby directs the Conversion Agent (as that term is defined in the Indenture)
to convert such Securities on behalf of the undersigned, into Common Stock (at
the conversion price specified in the Indenture).
The undersigned also hereby directs the Conversion Agent that the shares
issuable and deliverable upon conversion, together with any check in payment for
fractional shares, be issued in the name of and delivered to the undersigned,
unless a different name has been indicated in the assignment below. If shares
are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto.
Date:
------------------------
Principal Amount of Securities to be converted ($25 or integral multiples
thereof):
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Common Stock are to be issued,
along with the address or addresses of such person or persons.
- --------------------------------------
- --------------------------------------
- --------------------------------------
- --------------------------------------
(Sign exactly as your name appears on the other side of this Security) (for
conversion only)
A-11
<PAGE>
Please Print or Type Name and Address,
Including Zip Code, and Social Security
or Other Identifying Number
- --------------------------------------
- --------------------------------------
- --------------------------------------
- --------------------------------------
Signature Guarantee:*
---------------------------------------------
- ---------------
* Signature must be guaranteed by an "eligible guarantor institution" that is a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.
A-12
EXHIBIT 4.8
====================================
CAPITAL SECURITIES GUARANTEE AGREEMENT
New York Bancorp Inc.
Dated as of ____________, 1997
====================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INTERPRETATION..................... 2
SECTION 1.1. Definitions and Interpretation......................... 2
ARTICLE II TRUST INDENTURE ACT.................................... 6
SECTION 2.1. Trust Indenture Act; Application....................... 6
SECTION 2.2. Lists of Holders of Securities......................... 7
SECTION 2.3. Reports by the Capital Securities
Guarantee Trustee.................................. 7
SECTION 2.4. Periodic Reports to Capital Securities
Guarantee Trustee.................................. 7
SECTION 2.5. Evidence of Compliance with Conditions
Precedent.......................................... 8
SECTION 2.6. Events of Default; Waiver.............................. 8
SECTION 2.7. Events of Default; Notice.............................. 8
SECTION 2.8. Conflicting Interests.................................. 9
ARTICLE III POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE.............. 9
SECTION 3.1. Powers and Duties of the Capital
Securities Guarantee Trustee....................... 9
SECTION 3.2. Certain Rights of Capital Securities
Guarantee Trustee.................................. 12
SECTION 3.3. Not Responsible for Recitals or Issuance
of Capital Securities Guarantee.................... 14
ARTICLE IV CAPITAL SECURITIES GUARANTEE TRUSTEE............... 15
SECTION 4.1. Capital Securities Guarantee Trustee;
Eligibility........................................ 15
SECTION 4.2. Appointment, Removal and Resignation of
Capital Securities Guarantee Trustee............... 16
ARTICLE V GUARANTEE.......................................... 17
SECTION 5.1. Guarantee.............................................. 17
SECTION 5.2. Waiver of Notice and Demand............................ 17
SECTION 5.3. Obligations Not Affected............................... 17
SECTION 5.4. Rights of Holders...................................... 18
SECTION 5.5. Guarantee of Payment................................... 19
SECTION 5.6. Subrogation............................................ 19
SECTION 5.7. Independent Obligations................................ 20
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION................ 20
SECTION 6.1. Limitation of Transactions............................. 20
SECTION 6.2. Ranking................................................ 21
i
<PAGE>
ARTICLE VII TERMINATION.............................................. 22
ARTICLE VIII COMPENSATION AND EXPENSES OF
CAPITAL SECURITIES GUARANTEE TRUSTEE................. 22
ARTICLE IX INDEMNIFICATION.......................................... 23
SECTION 9.1. Exculpation............................................ 23
SECTION 9.2. Indemnification........................................ 23
ARTICLE X MISCELLANEOUS............................................ 24
SECTION 10.1. Successors and Assigns................................ 24
SECTION 10.2. Amendments............................................ 24
SECTION 10.3. Notices............................................... 24
SECTION 10.4. Benefit............................................... 25
SECTION 10.5. Governing Law......................................... 25
ii
<PAGE>
CAPITAL SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Capital Securities Guarantee"), dated
as of ____________, 1997, is executed and delivered by New York Bancorp Inc., a
Delaware corporation (the "Guarantor"), and The Bank of New York, a New York
banking corporation, as trustee (the "Capital Securities Guarantee Trustee"),
for the benefit of the Holders (as defined herein) from time to time of the
Capital Securities (as defined herein) of New York Bancorp Capital Trust, a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"; and capitalized terms used herein not otherwise defined
shall have the meanings ascribed thereto in the Declaration), dated as of
____________, 1997, 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 2,000,000 capital securities, having
an aggregate liquidation amount of $50,000,000, such capital securities being
designated the 8.00% Convertible Trust Preferred Securities (collectively the
"Capital Securities").
WHEREAS, as incentive for the Holders to purchase the Capital
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Capital Securities Guarantee, to pay to the Holders
the Guarantee Payments (as defined herein). The Guarantor agrees to make certain
other payments on the terms and conditions set forth herein.
WHEREAS, the Guarantor is executing and delivering a guarantee
agreement (the "Common Securities Guarantee"), with substantially identical
terms to this Capital Securities Guarantee, for the benefit of the holders of
the Common Securities (as defined herein), except that if an Event of Default
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 the Common Securities
Guarantee, to the rights of holders of Capital Securities to receive Guarantee
Payments under this Capital Securities Guarantee.
<PAGE>
NOW, THEREFORE, in consideration of the purchase by each Holder of
the Capital Securities and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Guarantor executes
and delivers this Capital Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation
In this Capital Securities Guarantee, unless the context otherwise
requires:
(a) Capitalized terms used in this Capital Securities Guarantee but
not defined in the preamble above have the respective meanings assigned to them
in this Section 1.1;
(b) all references to "the Capital Securities Guarantee" or "this
Capital Securities Guarantee" are to this Capital Securities Guarantee as
modified, supplemented or amended from time to time;
(c) all references in this Capital Securities Guarantee to Articles
and Sections are to Articles and Sections of this Capital Securities Guarantee,
unless otherwise specified;
(d) a term defined in the Trust Indenture Act has the same meaning
when used in this Capital Securities Guarantee, unless otherwise defined in this
Capital Securities Guarantee or unless the context otherwise requires; and
(e) a reference to the singular includes the
plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a Saturday or a Sunday, or a
day on which banking institutions in The City of New York or Douglaston, New
York are authorized or required by law or executive order to close.
2
<PAGE>
"Capital Securities Guarantee Trustee" means The Bank of New York, a
New York banking corporation, until a Successor Capital Securities Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Capital Securities Guarantee and thereafter means each such
Successor Capital Securities Guarantee Trustee.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Capital Securities
Guarantee Trustee at which the corporate trust business of the Capital
Securities Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Agreement is located
at 101 Barclay Street, Floor 21 West, New York, New York 10286.
"Covered Person" means any Holder or beneficial owner of Capital
Securities.
"Debentures" means the series of subordinated debt securities of the
Guarantor designated the 8.00% Junior Convertible Subordinated Debentures due
__________, 2027 held by the Property Trustee of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Capital Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Capital Securities, to the extent not
paid or made by the Issuer: (i) any accumulated and unpaid Distributions that
are required to be paid on such Capital Securities to the extent the Issuer has
funds on hand legally available therefor at such time, (ii) the redemption
price, including all accumulated and unpaid Distributions to the date of
redemption (the "Redemption Price"), to the extent the Issuer has funds on hand
legally available therefor at such time, with respect to any Capital Securities
called for redemption by the Issuer, and (iii) upon a voluntary or involuntary
termination and liquidation of the Issuer (other than in connection with the
distribution of Debentures to the Holders in exchange for Capital Securities as
provided in the Declaration), the lesser of (a) the aggregate of the
3
<PAGE>
liquidation amount and all accumulated and unpaid Distributions on the Capital
Securities to the date of payment, to the extent the Issuer has funds on hand
legally available therefor, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the Issuer. If an Event
of Default has occurred and is continuing, no Guarantee Payments under the
Common Securities Guarantee with respect to the Common Securities or any
guarantee payment under any Other Common Securities Guarantees shall be made
until the Holders shall be paid in full the Guarantee Payments to which they are
entitled under this Capital Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Capital Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Capital
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Capital Securities Guarantee Trustee,
any Affiliate of the Capital Securities Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Capital Securities Guarantee
Trustee.
"Indenture" means the Indenture dated as of ____________, 1997,
between the Guarantor (the "Debenture Issuer") and The Bank of New York, as
trustee, pursuant to which the Debentures are to be issued to the Property
Trustee of the Issuer.
"Majority in liquidation amount of the Capital Securities" means,
except as provided by the Trust Indenture Act, a vote by Holders of more than
50% of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined) of
all Capital Securities.
"Officer's Certificate" means, with respect to any Person, a
certificate signed by the Chairman, the Co-Chairman, a Vice Chairman, the Chief
Executive Officer, the President, a Vice President, the Comptroller, the
Secretary or an Assistant Secretary of such Person. Any
4
<PAGE>
Officer's Certificate delivered with respect to compliance with a condition or
covenant provided for in this Capital Securities Guarantee (other than pursuant
to Section 314(a)(4) of the Trust Indenture Act) shall include:
(a) a statement that the officer signing the Officer's Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a statement that 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
(c) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Other Common Securities Guarantees" shall have the same meaning as
"Other Guarantees" in the Common Securities Guarantee.
"Other Debentures" means all junior subordinated debentures issued
by the Guarantor from time to time and sold to trusts to be established by the
Guarantor (if any), in each case similar to the Issuer.
"Other Guarantees" means all guarantees to be issued by the
Guarantor with respect to capital securities (if any) similar to the Capital
Securities, issued by other trusts to be established by the Guarantor (if any),
in each case similar to the Issuer.
"Responsible Officer" means, with respect to the Capital Securities
Guarantee Trustee, any officer within the Corporate Trust Office of the Capital
Securities Guarantee Trustee, including any vice president, any assistant vice
president, any assistant secretary, any assistant treasurer, any trust officer,
any senior trust officer or other officer in the Corporate Trust Office of the
Capital Securities Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
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"Successor Capital Securities Guarantee Trustee" means a successor
Capital Securities Guarantee Trustee possessing the qualifications to act as
Capital Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Securities" means the Common Securities and the Capital
Securities, collectively.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application
(a) This Capital Securities Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Capital
Securities Guarantee and, to the extent applicable, shall be governed by such
provisions; and
(b) if and to the extent that any provision of this Capital
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
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SECTION 2.2. Lists of Holders of Securities
(a) The Guarantor shall provide the Capital Securities Guarantee
Trustee (unless the Capital Securities Guarantee Trustee is otherwise the
registrar of the Capital Securities) with a list, in such form as the Capital
Securities Guarantee Trustee may reasonably require, of the names and addresses
of the Holders ("List of Holders") (i) within 14 days after each record date for
payment of Distributions (which shall list the Holders as of such dates), and
(ii) at any other time within 30 days of receipt by the Guarantor of a written
request for a List of Holders as of a date no more than 14 days before such List
of Holders is given to the Capital Securities Guarantee Trustee; provided,
however, that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Capital Securities Guarantee Trustee by the
Guarantor. The Capital Securities Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Capital Securities Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3. Reports by the Capital Securities Guarantee Trustee
Within 60 days after May 15 of each year, commencing May 15, 1998,
the Capital Securities Guarantee Trustee shall provide to the Holders such
reports as are required by Section 313(a) of the Trust Indenture Act, if any, in
the form and in the manner provided by Section 313 of the Trust Indenture Act.
The Capital Securities Guarantee Trustee shall also comply with the other
requirements of Section 313 of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to Capital Securities Guarantee
Trustee
The Guarantor shall provide to the Capital Securities Guarantee
Trustee such documents, reports and information as required by Section 314 (if
any) 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(a)(4) of the Trust Indenture Act, such compliance certificate to be
delivered on or before 120
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days after the end of each fiscal year of the Guarantor; provided, that any such
information, documents or reports required to be filed with the Securities and
Exchange Commission pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, shall be filed with the Capital Securities Guarantee
Trustee within 15 days after the same is required to be filed with the
Securities and Exchange Commission. Delivery of such reports, information and
documents to the Capital Securities Guarantee Trustee is for informational
purposes only and the Capital Securities Guarantee Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Guarantor's
compliance with any of its covenants hereunder (as to which the Capital
Securities Guarantee Trustee is entitled to rely exclusively on Officer's
Certificates).
SECTION 2.5. Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Capital Securities Guarantee
Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Capital Securities Guarantee that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officer's Certificate.
SECTION 2.6. Events of Default; Waiver
The Holders of a Majority in liquidation amount of Capital
Securities may, by vote, on behalf of all 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 Capital Securities Guarantee, but no
such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon.
SECTION 2.7. Events of Default; Notice
(a) The Capital Securities Guarantee Trustee, within 90 days after
the occurrence of a default with respect to this Capital Securities Guarantee,
shall mail by first class postage prepaid, to all Holders, notices of all
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defaults actually known to a Responsible Officer of the Capital Securities
Guarantee Trustee, unless such defaults have been cured before the giving of
such notice; provided that, except in the case of default in the payment of any
Guarantee Payment, the Capital Securities Guarantee Trustee shall be protected
in withholding such notice if and so long as a Responsible Officer of the
Capital Securities Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders.
(b) The Capital Securities Guarantee Trustee shall not be deemed to
have knowledge of any Event of Default unless the Capital Securities Guarantee
Trustee shall have received written notice from the Guarantor, or a Responsible
Officer of the Capital Securities Guarantee Trustee charged with the
administration of the Declaration shall have obtained actual knowledge, of such
Event of Default.
SECTION 2.8. Conflicting Interests
The Declaration shall be deemed to be specifically described in this
Capital Securities 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
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Capital Securities Guarantee
Trustee
(a) This Capital Securities Guarantee shall be held by the Capital
Securities Guarantee Trustee for the benefit of the Holders, and the Capital
Securities Guarantee Trustee shall not transfer this Capital Securities
Guarantee to any Person except a Holder exercising such Holder's rights pursuant
to Section 5.4(b) or to a Successor Capital Securities Guarantee Trustee on
acceptance by such Successor Capital Securities Guarantee Trustee of its
appointment to act as Successor Capital Securities Guarantee Trustee. The right,
title and interest of the Capital Securities Guarantee Trustee shall
automatically vest in any Successor Capital Securities Guarantee Trustee, and
such vesting and succession of title shall be effective whether or not
conveyancing documents have been executed and delivered
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pursuant to the appointment of such Successor Capital Securities Guarantee
Trustee.
(b) If an Event of Default actually known to a Responsible Officer
of the Capital Securities Guarantee Trustee has occurred and is continuing, the
Capital Securities Guarantee Trustee shall enforce this Capital Securities
Guarantee for the benefit of the Holders.
(c) The Capital Securities Guarantee Trustee, before the occurrence
of any Event of Default and after the curing of all Events of Default that may
have occurred, shall undertake to perform only such duties as are specifically
set forth in this Capital Securities Guarantee, and no implied covenants shall
be read into this Capital Securities Guarantee against the Capital Securities
Guarantee Trustee. In case an Event of Default has occurred (that has not been
cured or waived pursuant to Section 2.6) of which a Responsible Officer of the
Capital Securities Guarantee Trustee has actual knowledge, the Capital
Securities Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Capital Securities 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 Capital Securities Guarantee shall be
construed to relieve the Capital Securities Guarantee Trustee from liability for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) 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:
(i) the duties and obligations of the Capital Securities Guarantee
Trustee shall be determined solely by the express provisions of this
Capital Securities Guarantee, and the Capital Securities Guarantee Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Capital Securities
Guarantee, and no implied covenants or obligations shall be read into this
Capital Securities Guarantee against the Capital Securities Guarantee
Trustee; and
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(ii) in the absence of bad faith on the part of the Capital
Securities Guarantee Trustee, the Capital Securities 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 Capital Securities Guarantee Trustee and conforming to
the requirements of this Capital Securities Guarantee; provided, however,
that in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Capital
Securities Guarantee Trustee, the Capital Securities Guarantee Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Capital Securities Guarantee;
(2) the Capital Securities Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of the Capital
Securities Guarantee Trustee, unless it shall be proved that the Capital
Securities Guarantee Trustee was negligent in ascertaining the pertinent facts
upon which such judgment was made;
(3) the Capital Securities 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 a Majority in liquidation amount
of the Capital Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Capital Securities Guarantee
Trustee, or exercising any trust or power conferred upon the Capital Securities
Guarantee Trustee under this Capital Securities Guarantee; and
(4) no provision of this Capital Securities Guarantee shall require
the Capital Securities 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 Capital
Securities Guarantee Trustee shall have reasonable grounds for believing that
the repayment of such funds or liability is not reasonably assured to it under
the terms of this Capital Securities Guarantee or indemnity, reasonably
satisfactory to the Capital Securities Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
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SECTION 3.2. Certain Rights of Capital Securities Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Capital Securities Guarantee Trustee may conclusively
rely, and shall be fully protected in acting or refraining from acting,
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the proper party or
parties;
(ii) Any direction or act of the Guarantor contemplated by this
Capital Securities Guarantee may be sufficiently evidenced by an Officer's
Certificate;
(iii) Whenever, in the administration of this Capital Securities
Guarantee, the Capital Securities Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking, suffering
or omitting any action hereunder, the Capital Securities Guarantee Trustee
(unless other evidence is herein specifically prescribed), in the absence
of bad faith on its part, may request and conclusively rely upon an
Officer's Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor;
(iv) The Capital Securities Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof);
(v) The Capital Securities Guarantee Trustee may consult with
counsel of its selection, and the advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its Affiliates and
may include any of its employees. The Capital Securities Guarantee Trustee
shall have the right at any time to seek instructions concerning the
administration of this Capital Securities Guarantee from any court of
competent jurisdiction;
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(vi) The Capital Securities Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Capital Securities Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Capital Securities Guarantee
Trustee such security and indemnity, reasonably satisfactory to the
Capital Securities Guarantee Trustee, against the costs, expenses
(including reasonable attorneys' fees and expenses and the expenses of the
Capital Securities Guarantee Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Capital Securities Guarantee Trustee; provided that, nothing contained in
this Section 3.2(a)(vi) shall be taken to relieve the Capital Securities
Guarantee Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this Capital
Securities Guarantee;
(vii) The Capital Securities 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 Capital Securities
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(viii) The Capital Securities Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys, and
the Capital Securities Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(ix) Any action taken by the Capital Securities Guarantee Trustee
or its agents hereunder shall bind the Holders, and the signature of the
Capital Securities Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No third party shall
be required to inquire as to the authority of the Capital Securities
Guarantee Trustee
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to so act or as to its compliance with any of the terms and provisions of
this Capital Securities Guarantee, both of which shall be conclusively
evidenced by the Capital Securities Guarantee Trustee's or its agent's
taking such action;
(x) Whenever in the administration of this Capital Securities
Guarantee the Capital Securities Guarantee Trustee shall deem it desirable
to receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Capital Securities Guarantee
Trustee (i) may request instructions from the Holders of a Majority in
liquidation amount of the Capital Securities, (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in conclusively
relying on or acting in accordance with such instructions; and
(xi) The Capital Securities Guarantee Trustee shall not be liable
for any action taken, suffered, or omitted to be taken by it in good
faith, without negligence, and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Capital Securities Guarantee.
(b) No provision of this Capital Securities Guarantee shall be
deemed to impose any duty or obligation on the Capital Securities 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 Capital Securities 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 Capital Securities Guarantee
Trustee shall be construed to be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Capital
Securities Guarantee
The recitals contained in this Capital Securities Guarantee shall be
taken as the statements of the Guarantor, and the Capital Securities Guarantee
Trustee does not assume any responsibility for their correctness. The Capital
Securities Guarantee Trustee makes no representation as to
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the validity or sufficiency of this Capital Securities Guarantee.
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1. Capital Securities Guarantee Trustee; Eligibility
(a) There shall at all times be a Capital Securities Guarantee
Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof or of
the District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes of this
Section 4.1(a)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Capital Securities Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Capital Securities
Guarantee Trustee shall immediately resign in the manner and with the effect
set out in Section 4.2(c).
(c) If the Capital Securities Guarantee Trustee has or shall acquire
any "conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Capital Securities Guarantee Trustee and Guarantor shall in
all respects comply with the provisions of Section 310(b) of the Trust Indenture
Act, subject to the penultimate paragraph thereof.
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SECTION 4.2. Appointment, Removal and Resignation of Capital
Securities Guarantee Trustee
(a) Subject to Section 4.2(b), the Capital Securities Guarantee
Trustee may be appointed or removed without cause at any time by the Guarantor
except during an Event of Default.
(b) The Capital Securities Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Capital Securities Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Capital Securities Guarantee Trustee and
delivered to the Guarantor.
(c) The Capital Securities Guarantee Trustee shall hold office until
a Successor Capital Securities Guarantee Trustee shall have been appointed or
until its removal or resignation. The Capital Securities Guarantee Trustee may
resign from office (without need for prior or subsequent accounting) by an
instrument in writing executed by the Capital Securities Guarantee Trustee and
delivered to the Guarantor, which resignation shall not take effect until a
Successor Capital Securities Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Capital Securities Guarantee Trustee and delivered to the Guarantor and the
resigning Capital Securities Guarantee Trustee.
(d) If no Successor Capital Securities Guarantee Trustee shall have
been appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery of an instrument of removal or resignation, the Capital
Securities Guarantee Trustee resigning or being removed may petition any court
of competent jurisdiction for appointment of a Successor Capital Securities
Guarantee Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Successor Capital Securities Guarantee
Trustee.
(e) No Capital Securities Guarantee Trustee shall be liable for the
acts or omissions to act of any Successor Capital Securities Guarantee Trustee.
(f) Upon termination of this Capital Securities Guarantee or removal
or resignation of the Capital Securities Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Capital Securities Guarantee
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Trustee all amounts due to the Capital Securities Guarantee Trustee accrued to
the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee
The Guarantor hereby irrevocably and unconditionally agrees to pay
in full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that 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.
SECTION 5.2. Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Capital
Securities 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 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 Capital Securities 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 Capital 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, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Capital Securities (as such
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terms are defined therein) or the extension of time for the performance of any
other obligation under, arising out of, or in connection with, the Capital
Securities (other than an extension of time for payment of Distributions,
Redemption Price, Liquidation Distribution or other sum payable that results
from the extension of any interest payment period on the Debentures permitted by
the Indenture);
(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 Capital 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 Capital
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) except as set forth in Article VII hereof, any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a guarantor, it being the intent of this Section 5.3
that the obligations of the Guarantor with respect to the Guarantee Payments
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4. Rights of Holders
(a) The Holders of a Majority in liquidation amount of the Capital
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Capital Securities Guarantee Trustee
in respect of this Capital Securities Guarantee or exercising any trust or power
conferred upon the Capital
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Securities Guarantee Trustee under this Capital Securities Guarantee; provided,
however, that, subject to Section 3.1, the Capital Securities Guarantee Trustee
shall have the right to decline to follow any such direction if the Capital
Securities Guarantee Trustee, upon advice of counsel, shall determine that the
action so directed would be unjustly prejudicial to the Holders not taking part
in such direction or if the Capital Securities Guarantee Trustee, upon advice of
counsel, determines that the action or proceeding so directed may not lawfully
be taken or if the Capital Securities Guarantee Trustee in good faith by its
board of directors or trustees, executive committee, or a trust committee of
directors or trustees and/or Responsible Officers shall determine that the
action or proceedings so directed would involve the Capital Securities Guarantee
Trustee in personal liability.
(b) If the Capital Securities Guarantee Trustee fails to enforce
such Capital Securities Guarantee, any Holder may institute a legal proceeding
directly against the Guarantor to enforce the Capital Securities Guarantee
Trustee's rights under this Capital Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Capital Securities
Guarantee Trustee or any other Person. The Guarantor waives any right or remedy
to require that any action be brought first against the Issuer or any other
Person before proceeding directly against the Guarantor.
SECTION 5.5. Guarantee of Payment
This Capital Securities Guarantee creates a guarantee of payment and
not of collection.
SECTION 5.6. Subrogation
The Guarantor shall be subrogated to all rights of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Capital Securities Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Capital Securities Guarantee, if, at the time of
any such payment, any amounts are due and unpaid under this Capital Securities
Guarantee. If any amount shall be paid to the Guarantor in violation of the
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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 Capital
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Capital
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions
If (i) an Event of Default (as defined in the Indenture) shall have
occurred and be continuing (other than solely an Event of Default as described
in Section 5.1(c) of the Indenture), (ii) there shall have occurred any event of
which the Guarantor has actual knowledge that (a) is, or with the giving of
notice or the lapse of time, or both, would be an Event of Default (as defined
in the Indenture), other than solely an Event of Default as described in Section
5.1(c) of the Indenture, and (b) in respect of which the Guarantor shall not
have taken reasonable steps to cure, (iii) in the event the Debentures are held
by the Property Trustee and the Guarantor shall be in default with respect to
its payment of any obligations under this Capital Securities Guarantee or (iv)
the Guarantor shall have given notice of its election of the exercise of its
right to extend the interest payment period pursuant to Section 16.1 of the
Indenture and any such extension shall be continuing, then, in each such case,
so long as any Capital Securities remain outstanding, the Guarantor shall 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 Guarantor's
capital stock or (ii) make any payment of principal, interest or premium, if
any, on or repay or repurchase or redeem any debt securities of the Guarantor
(including any Other Debentures) that rank pari passu with or junior in right of
payment to the Debentures or (iii) make any guarantee payments with respect to
any guarantee by
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the Guarantor of any securities of any subsidiary of the Guarantor (including
Other Guarantees) if such guarantee ranks pari passu or junior in right of
payment to the Debentures, other than (a) dividends or distributions in shares
of, or options, warrants, rights to subscribe for or purchase shares of, common
stock of the Guarantor, (b) any declaration of a dividend in connection with the
implementation of a stockholder's 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 Capital Securities Guarantee, (d) as a
direct result of, and only to the extent required in order to avoid the issuance
of fractional shares of capital stock following, a reclassification of the
Guarantor's capital stock or the exchange or the conversion of one class or
series of the Guarantor's capital stock for another class or series of the
Guarantor's capital stock, (e) the purchase of fractional interests in shares of
the Guarantor's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged, and (f)
purchases of common stock related to the issuance of common stock or rights
under any of the Guarantor's benefit plans for its directors, officers or
employees or any of the Guarantor's dividend reinvestment plans.
SECTION 6.2. Ranking
This Capital Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to Senior Indebtedness (as defined in the Indenture), to the same extent
and in the same manner that the Debentures are subordinated to Senior
Indebtedness pursuant to the Indenture, it being understood that the terms of
Article XV of the Indenture shall apply to the obligations of the Guarantor
under this Capital Securities Guarantee as if (x) such Article XV were set forth
herein in full and (y) such obligations were substituted for the term
"Securities" appearing in such Article XV, (ii) pari passu with the Debentures,
the Other Debentures and with the most senior preferred or preference stock now
or hereafter issued by the Guarantor and with any Other Guarantee and any Other
Common Securities Guarantee and any guarantee now or hereafter entered into by
the Guarantor in respect of any preferred or preference stock of any Affiliate
of the Guarantor, and (iii) senior to the Guarantor's common stock.
21
<PAGE>
ARTICLE VII
TERMINATION
This Capital Securities Guarantee shall terminate (i) upon full
payment of the Redemption Price of all of the Capital Securities, or (ii) upon
liquidation of the Issuer and the full payment of the amounts payable in
accordance with the Declaration or the distribution of the Debentures to the
Holders of all of the Capital Securities. Notwithstanding the foregoing, this
Capital Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid under the Capital Securities or under this Capital Securities
Guarantee.
ARTICLE VIII
COMPENSATION AND EXPENSES OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
The Guarantor agrees:
(a) to pay to the Capital Securities Guarantee Trustee from time to
time reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision or law in regard to the
compensation of a trustee of an express trust); and
(b) except as otherwise expressly provided herein, to reimburse the
Capital Securities Guarantee Trustee upon request for all reasonable expenses,
disbursements and advances incurred or made by the Capital Securities Guarantee
Trustee in accordance with any provision of this Capital Securities Guarantee
(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 their respective negligence or bad faith.
The provisions of this Article VIII shall survive the dissolution of
the Issuer and the termination of this Capital Securities Guarantee and the
removal or resignation of the Capital Securities Guarantee Trustee.
The Capital Securities Guarantee Trustee may not claim any lien or
charge on any property of the Issuer as a result of any amount due pursuant to
this Article VIII.
22
<PAGE>
ARTICLE IX
INDEMNIFICATION
SECTION 9.1. Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith in accordance with this Capital
Securities Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Capital Securities Guarantee or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim incurred
by reason of such Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence, 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 might properly be paid.
SECTION 9.2. Indemnification
The Guarantor agrees to indemnify each Indemnified Person for, and
to hold each Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 9.2 shall survive the dissolution of the
Issuer, the termination of this Capital Securities Guarantee and the removal or
resignation of the Capital Securities Guarantee Trustee.
23
<PAGE>
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Successors and Assigns
All guarantees and agreements contained in this Capital Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
then outstanding.
SECTION 10.2. Amendments
Except with respect to any changes that do not materially adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Capital Securities Guarantee may only be amended with the prior
approval of the Holders of a Majority in liquidation amount of the Capital
Securities (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined). The provisions of the Declaration
with respect to consents to amendments thereof (whether at a meeting or
otherwise) shall apply to the giving of such approval.
SECTION 10.3. Notices
All notices provided for in this Capital Securities Guarantee shall
be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Issuer, in care of the Administrator at the
Issuer's mailing address set forth below (or such other address as the Issuer
may give notice of to the Holders and the Capital Securities Guarantee Trustee):
New York Bancorp Capital Trust
c/o New York Bancorp Inc.
241-02 Northern Boulevard
Douglaston, New York 11362
Attention: Chief Executive Officer
(b) If given to the Capital Securities Guarantee Trustee, at the
Capital Securities Guarantee Trustee's mailing address set forth below (or such
other address as
24
<PAGE>
the Capital Securities Guarantee Trustee may give notice of to the Holders and
the Issuer):
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Administration
(c) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Capital Securities and the Capital Securities Guarantee
Trustee):
New York Bancorp Inc.
241-02 Northern Boulevard
Douglaston, New York 11362
Attention: Chief Executive Officer
(d) If given to any Holder of Capital Securities, at the address set
forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 10.4. Benefit
This Capital Securities Guarantee is solely for the benefit of the
Holders and, subject to Section 3.1(a), is not separately transferable from the
Capital Securities.
SECTION 10.5. Governing Law
THIS CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
25
<PAGE>
THIS CAPITAL SECURITIES GUARANTEE is executed as of the day and year
first above written.
NEW YORK BANCORP INC., as
Guarantor
By:
---------------------------------
Michael A. McManus, Jr.
President and Chief
Executive Officer
THE BANK OF NEW YORK, as
Capital Securities Guarantee
Trustee
By:
---------------------------------
----------------------
----------------------
EXHIBIT 4.9
SUBSCRIPTION FORM
IN RESPECT OF
8.00% CONVERTIBLE TRUST PREFERRED SECURITIES
(THE "CAPITAL SECURITIES") OF
NEW YORK BANCORP CAPITAL TRUST
PLEASE RETURN THIS SUBSCRIPTION FORM TO THE SALES AGENT:
THE BANK OF NEW YORK
By Mail: By Overnight Courier or Hand:
The Bank of New York The Bank of New York
101 Barclay Street (7 East) 101 Barclay Street (7 East)
Reorganization Section Reorganization Section
New York, New York 10286 Corporate Trust Services Window
Attention: Enrique Lopez New York, New York 10286
Attention: Enrique Lopez
Confirmation Only:
(212) 815-2742
- -------------------------------------------------------------------------------
ALL PROPERLY COMPLETED, EXECUTED AND DATED SUBSCRIPTION FORMS, TOGETHER WITH
PAYMENT FOR THE PURCHASE PRICE, MUST BE RECEIVED BY THE SALES AGENT PRIOR TO
5:00 P.M., NEW YORK CITY TIME, ON OCTOBER __, 1997 (AS SUCH DATE MAY BE
EXTENDED, THE "EXPIRATION DATE"). HOLDERS WHO DO NOT DELIVER A PROPERLY
COMPLETED AND EXECUTED SUBSCRIPTION FORM, TOGETHER WITH PAYMENT FOR THE PURCHASE
PRICE, ON OR PRIOR TO THE EXPIRATION DATE WILL NOT BE ENTITLED TO PURCHASE ANY
CAPITAL SECURITIES OF NEW YORK BANCORP CAPITAL TRUST.
- -------------------------------------------------------------------------------
SUBSCRIPTION FORMS SHOULD NOT BE DELIVERED TO ANY OTHER PERSON OTHER THAN THE
SALES AGENT.
This Subscription Form is being sent by New York Bancorp Inc. ("NEW YORK
BANCORP") exclusively to holders (the "HOLDERS") of New York Bancorp's common
stock, par value $0.01 per share (the "COMMON STOCK") as of the close of
business on September 18, 1997 (the "RECORD DATE"). In order to subscribe for
Capital Securities of New York Bancorp Capital Trust, a Delaware statutory
business trust (the "TRUST"), which are being offered (the "SUBSCRIPTION
OFFERING") pursuant to a Subscription Offering Prospectus dated September __,
1997 (the "PROSPECTUS"), a Holder must complete this Subscription Form and
tender the purchase price to the Sales Agent prior to the Expiration Date. The
purchase price payable in connection with a subscription for Capital Securities
may be paid by certified, cashier's or personal check or money order payable to
New York Bancorp Capital Trust. A Holder may purchase up to the same percentage
of the Capital Securities offered in the Subscription Offering (rounded down to
the nearest whole Capital Security) as the percentage of the outstanding shares
of Common Stock owned of record by such Holder (the "PRO RATA SUBSCRIPTION
RIGHT") as of the Record Date. Based on the number of shares of Common Stock
outstanding on the Record Date, a Holder would be entitled to purchase pursuant
to his Pro Rata Subscription Right .0938 of a Capital Security for each share of
Common Stock held as of such date. Each Holder also is being given the
opportunity to indicate on this Subscription Form whether such Holder wishes to
purchase, in the event the Subscription Offering is not fully subscribed
pursuant to the Pro Rata Subscription Rights, Capital Securities in excess of
those allotted to him pursuant to his Pro Rata Subscription Right and the
maximum amount of such excess Capital Securities such Holder seeks to purchase
(the "EXCESS SUBSCRIPTION RIGHT"). In the event the exercise of the Excess
Subscription Rights results in the Subscription Offering being oversubscribed,
then the number of Capital Securities sought to be purchased by each Holder
exercising Excess Subscription Rights will be reduced as described in the
Prospectus.
Holders who hold their shares of Common Stock through an account with a
nominee should contact such nominee concerning the actions required for such
Holders to subscribe for Capital Securities.
NYFS10...:\81\65281\0001\1819\FRM9127U.41D
<PAGE>
SUBSCRIPTION
Subject to the terms and conditions set forth in the Prospectus and
herein, and effective upon acceptance of this Subscription Form by New York
Bancorp and the Trust, the undersigned hereby subscribes for that number of
whole Capital Securities (rounded down to the nearest whole Capital Security as
indicated in the box below) purchasable pursuant to the undersigned's Pro Rata
Subscription Right and Excess Subscription Right, in the amounts set forth in
the box below, at a purchase price of $25.00 per Capital Security (the
"SUBSCRIPTION").
If the undersigned holds shares of Common Stock as nominee for the account
of beneficial holders of such shares of Common Stock who are Holders, the
undersigned hereby represents that it is subscribing for that number of Capital
Securities purchasable by each such Holder on whose behalf this Subscription is
made pursuant to such Holder's Pro Rata Subscription Right and Excess
Subscription Right. The undersigned acknowledges that it must comply with the
other provisions set forth herein, and complete or provide the other information
required herein, to validly subscribe for such Capital Securities.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to subscribe for Capital Securities on the terms set
forth herein. The undersigned shall, upon request, execute and deliver any
additional documents deemed by the Sales Agent or New York Bancorp to be
necessary or desirable to perfect the undersigned's Subscription or evidence
such power and authority.
Subscriptions by Holders that are DTC Participants and whose shares of
Common Stock are registered in the name of Cede & Co. should be signed in the
manner in which the Holder's name appears on the position listing of Cede & Co.
with respect to the Common Stock. The Subscription is not a DTC eligible
transaction, and, therefore, the Subscription Form must be delivered, together
with payment of the applicable aggregate purchase price, to the Sales Agent, at
its address set forth on the cover of this Subscription Form.
The undersigned understands that, upon acceptance of this Subscription
Form by New York Bancorp and the Trust, this Subscription will constitute a
binding agreement between the undersigned, New York Bancorp and the Trust. The
undersigned hereby agrees that it may not amend, modify or rescind its
Subscription once received by the Sales Agent, without the consent of New York
Bancorp and the Trust, which consent may be withheld for any or no reason at the
sole discretion of New York Bancorp and the Trust.
New York Bancorp reserves the right (i) to extend the Subscription
Offering at any time or from time to time and (ii) to modify or terminate the
Subscription Offering at any time and for any reason in its sole discretion, on
or prior to the Expiration Date, by notice to that effect to the Sales Agent,
followed by public notice.
Properly completed and validly executed Subscription Forms will be
accepted as soon as practicable after the Expiration Date and Capital Securities
validly subscribed for will be issued as promptly as practicable thereafter or,
in the event the Subscription Offering is not fully subscribed,
contemporaneously with the issuance of Capital Securities in the Public Offering
(as defined in the Prospectus). In the event that any Subscriptions are not
accepted by New York Bancorp or the Trust, all documents submitted by the
undersigned, and all amounts delivered in payment of the purchase price for
Capital Securities, will be returned as promptly as practicable following the
expiration or termination of the Subscription Offering.
Refunds to subscribing Holders will be remitted (a) in the event of an
oversubscription in the Subscription Offering and (b) in the event the
Subscription Offering is terminated. Under no circumstances will interest be
paid on funds delivered as payment for the Capital Securities. Any refunds due
to Holders on funds remitted will be mailed to each Holder at the address
designated on the Subscription Form promptly after the expiration or termination
of the Subscription Offering.
All authority conferred or agreed to be conferred hereby will survive the
death, incapacity, dissolution or liquidation of the undersigned, and every
obligation of the undersigned hereunder will be binding upon the undersigned's
heirs, personal representatives, successors and assigns.
By executing this Subscription Form, the undersigned acknowledges receipt
of the Prospectus and understands that the Capital Securities the undersigned
will receive are being offered pursuant to the terms set forth herein and in the
Prospectus.
All questions as to the validity, form, eligibility, receipt and
revocation of any Subscription Form will be resolved by New York Bancorp and the
Trust, whose determination shall be final and binding. New York Bancorp and the
Trust reserve the right to waive any defects, irregularities or conditions of
delivery as to a particular Subscription Form. Unless waived, all such defects
or irregularities must be cured prior to the Expiration Date. None of New York
Bancorp, the Trust, the Sales Agent nor any other person is under any duty to
give notification of any such defects or irregularities, nor will any of them
incur any liability for failure to give such notification. Subscription Forms
will not be deemed to have been properly delivered until all defects and
irregularities have been cured or waived. New York Bancorp's interpretation of
the terms and conditions of the Subscription Offering is conclusive and binding.
In order for the Subscription to be eligible for exercise, funds must be
available to the Trust on or prior to the Expiration Date. Funds paid by
uncertified personal check may take at least five business days to clear, in the
case of checks drawn on domestic banks, and seven business days in the case of
checks drawn on foreign banks. Accordingly, Holders who wish to pay for the
subscribed Capital Securities by means of uncertified personal check are urged
to make payment sufficiently in advance of the Expiration Date to ensure that
the payment is received and clears by that time, and are urged to consider in
the alternative payment by means of certified or cashier's check or money order.
2
<PAGE>
BOX 1
- --------------------------------------------------------------------------------
NAME AND ADDRESS OF REGISTERED HOLDER OR DTC PARTICIPANT AND DTC
PARTICIPANT NUMBER (IF PARTY HOLDS AS DTC PARTICIPANT):
- --------------------------------------------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
- --------------------------------------------------------------------------------
NUMBER OF SHARES OF NEW YORK BANCORP COMMON STOCK OWNED BY THE HOLDER AS OF
SEPTEMBER 18, 1997:
- --------------------------------------------------------------------------------
AGGREGATE PAYMENT TENDERED HEREWITH AGGREGATE NUMBER OF CAPITAL SECURITIES
PURSUANT TO PRO RATA SUBSCRIBED FOR PURSUANT TO PRO RATA
SUBSCRIPTION RIGHT SUBSCRIPTION RIGHT
(Number of Capital Securities indicated (Maximum equals the number of shares of
box to the right multiplied by $25) Common Stock held by you as of
September 18, 1997 multiplied by
.0938, rounded down to the
nearest whole Capital Security)
- --------------------------------------------------------------------------------
$ Capital Securities
----------- ------------
- --------------------------------------------------------------------------------
AGGREGATE PAYMENT TENDERED HEREWITH AGGREGATE NUMBER OF CAPITAL SECURITIES
PURSUANT TO EXCESS SUBSCRIBED FOR PURSUANT TO
SUBSCRIPTION RIGHT EXCESS SUBSCRIPTION RIGHT
(Number of Capital Securities indicated (Number of additional Capital
in box to the right multiplied by $25) Securities you wish to purchase
in excess of the number
indicated above)
- --------------------------------------------------------------------------------
$ Capital Securities
----------- ------------
- --------------------------------------------------------------------------------
METHOD OF PAYMENT
- --------------------------------------------------------------------------------
|_| Certified or cashier's check enclosed, payable to New York Bancorp
Capital Trust.
|_| Money order enclosed, payable to New York Bancorp Capital Trust.
|_| Personal check enclosed, payable to New York Bancorp Capital Trust.
In the event that any Subscriptions are not accepted by New York Bancorp or the
Trust, all documents submitted by the Holder, and all amounts delivered in
payment of the purchase price for Capital Securities, will be returned as
promptly as practicable following the expiration or termination of the
Subscription Offering.
- --------------------------------------------------------------------------------
3
<PAGE>
BOX 2
- --------------------------------------------------------------------------------
IMPORTANT -- READ CAREFULLY
Holder(s) must execute this Subscription Form exactly as their name(s)
appear(s) on the register of Common Stock. In the event shares of Common Stock
are held by Authorized DTC Participant(s), such Authorized DTC Participant(s)
must execute this Subscription Form exactly as their name(s) are registered with
DTC. If the shares of Common Stock are held of record by two or more joint
registered Holders, all such Holders must sign this Subscription Form. If
signature is 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 must submit proper
evidence satisfactory to New York Bancorp and the Trust of such person's
authority so to act.
SIGN HERE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Signature of Holder(s)
Dated:
----------------------------------------------------------------------
Name(s):
----------------------------------------------------------------------
(Please Print)
Capacity:
----------------------------------------------------------------------
Address:
----------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone No.: ( )
-----------------------------------------------
Tax Identification or Social Security No.:
-----------------------------------------------
- --------------------------------------------------------------------------------
4
<PAGE>
DELIVERY INSTRUCTIONS
Subject to the terms and conditions set forth in the Prospectus and
herein, upon acceptance of this Subscription by New York Bancorp and the Trust,
the Trust will issue and deliver to each Holder who delivers a properly
completed and executed Subscription Form, together with the applicable aggregate
purchase price therefor, to the Sales Agent on or prior to the Expiration Date
(provided such subscription is not rescinded), that number of Capital Securities
(rounded down to the nearest whole Capital Security) purchasable, at a price of
$25.00 per Capital Security, pursuant to such Holder's Pro Rata Subscription
Right and Excess Subscription Right (subject to reduction of the number of
Capital Securities sought to be purchased pursuant to Excess Subscription
Rights, in the event the exercise of Excess Subscription Rights results in the
Subscription Offering being oversubscribed, as described in the Prospectus).
Such delivery will be made only to Holders whose properly completed and executed
Subscription Forms are received by the Sales Agent, together with the applicable
aggregate purchase price therefor, prior to 5:00 p.m., New York City time, on
the Expiration Date. Holders whose properly completed and executed Subscription
Forms are not received, or whose applicable aggregate purchase price is not
received, prior to such time will NOT be entitled to subscribe for Capital
Securities. The method of delivery of all documents, including properly
completed and executed Subscription Forms, and any permitted method of payment
of the applicable aggregate purchase price, is at the election and risk of the
Holder.
In order for a Subscription for Capital Securities to be valid and
effective, a Subscription Form must be properly completed, executed and timely
received by the Sales Agent, together with the applicable aggregate purchase
price therefor. Subscriptions by Holders that are DTC Participants and whose
shares of Common Stock are registered in the name of Cede & Co. should be signed
in the manner in which the Holder's name appears on the position listing of Cede
& Co. with respect to the Common Stock. The Subscription is not a DTC eligible
transaction and, therefore, the Subscription Form must be delivered, together
with payment of the applicable aggregate purchase price, to the Sales Agent, at
its address set forth on the cover of this Subscription Form.
Capital Securities subscribed for will be delivered by the Sales Agent, on
behalf of the Trust, to the Holder at its address as it appears in Box 2 of this
Subscription Form. If the Holder desires that such Capital Securities be
delivered to another address, please so indicate in Box 3 below.
BOX 3
- --------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
To be completed ONLY if the Capital Securities are to be delivered to the
Holder at an address other than that indicated in Box 2 hereof.
Deliver Capital Securities to the Holder at the following address:
Name:
----------------------------------------------------------------------
(PLEASE PRINT)
Address:
----------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
- --------------------------------------------------------------------------------
<PAGE>
THE INFORMATION AGENT IS:
BEACON HILL PARTNERS, INC.
90 BROAD STREET
NEW YORK, NEW YORK 10004
CALL TOLL-FREE
1-800-854-9486
BANKS AND BROKERS PLEASE CALL:
(212) 843-8500
<PAGE>
OFFER TO SUBSCRIBE
FOR
8.00% CONVERTIBLE TRUST PREFERRED SECURITIES
(THE "CAPITAL SECURITIES") OF
NEW YORK BANCORP CAPITAL TRUST
September __, 1997
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by New York Bancorp Inc., a Delaware corporation
("New York Bancorp") to act as Information Agent in connection with the offer to
each holder (each, a "Holder") of New York Bancorp's outstanding shares of
common stock, par value $0.01 per share (the "Common Stock") as of the close of
business on September 18, 1997, to subscribe (the "Subscription Offering") for
that number of Capital Securities (rounded down to the nearest whole Capital
Security) purchasable pursuant to such Holder's Pro Rata Subscription Right and
Excess Subscription Right (each as defined in the Subscription Form), at a price
of $25.00 per Capital Security. Such offer to subscribe is being made pursuant
to the terms and conditions set forth in the Subscription Offering Prospectus
dated September __, 1997 (the "Prospectus") and the related Subscription Form.
Holders are invited to subscribe for Capital Securities, upon the terms
and conditions set forth in the Prospectus and the related Subscription Form.
For your information and for forwarding to your clients for whom you hold
shares of Common Stock registered in your name or in the name of your nominee,
we are enclosing the following documents:
1. Prospectus dated September __, 1997;
2. Subscription Form for your use and for the information of your
clients; and
3. Letter to Clients, which may be sent to your clients for whose
accounts you hold shares of Common Stock registered in your name or
in the name of your nominee, with space provided for obtaining such
clients' instructions with regard to the offer to subscribe.
NYFS10...:\81\65281\0001\1819\OFF9127W.08B
<PAGE>
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS
POSSIBLE. THE OFFER PERIOD EXPIRES AT 5:00 P.M., NEW YORK
CITY TIME, ON OCTOBER __, 1997, UNLESS OTHERWISE EXTENDED.
No fees or commissions will be payable to brokers, dealers or any other
person (other than fees to the Sales Agent and the Information Agent) for
soliciting subscriptions for Capital Securities. New York Bancorp will, however,
upon request, reimburse you for customary mailing and handling expenses incurred
by you in forwarding any of the enclosed materials to Holders whose shares of
Common Stock are held by you or your nominee.
In order to subscribe for Capital Securities, you must duly execute and
properly complete a Subscription Form and send it, together with payment of the
applicable aggregate purchase price in accordance with the payment instructions
set forth in the Subscription Form, to The Bank of New York, the Sales Agent.
Any questions or requests for assistance or additional copies of the
Prospectus and the Subscription Form may be directed to the Information Agent,
Beacon Hill Partners, Inc.
Very truly yours,
BEACON HILL PARTNERS, INC.
90 Broad Street
New York New York 10004
Call Toll-Free: 1-800-854-9486
Bankers and Brokers please call: (212) 843-8500
- --------------------------------------------------------------------------------
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL RENDER YOU AN AGENT
OF NEW YORK BANCORP, THE INFORMATION AGENT OR THE SALES AGENT, OR AUTHORIZE YOU
OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY
OF THEM IN CONNECTION WITH THE OFFER TO SUBSCRIBE OTHER THAN THE DOCUMENTS
ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN.
- --------------------------------------------------------------------------------
2
<PAGE>
OFFER TO SUBSCRIBE
FOR
8.00% CONVERTIBLE TRUST PREFERRED SECURITIES
(THE "CAPITAL SECURITIES") OF
NEW YORK BANCORP CAPITAL TRUST
To Our Clients:
Enclosed for your consideration is a Subscription Offering Prospectus
dated September __, 1997 (the "Prospectus") and the related Subscription Form in
connection with the offer by New York Bancorp Capital Trust, a Delaware
statutory business trust (the "Trust"), being made to each holder (each, a
"Holder") of outstanding shares of common stock, par value $0.01 per share (the
"Common Stock") of New York Bancorp Inc. ("New York Bancorp") as of September
18, 1997 to subscribe for that number of Capital Securities (rounded down to the
nearest whole Capital Security) purchasable pursuant to such Holder's Pro Rata
Subscription Right and Excess Subscription Right (each as defined in the
Subscription Form), at a price of $25.00 per Capital Security.
We are the holder of record of the shares of Common Stock held for your
account, and the Prospectus and the Subscription Form are being forwarded to you
as the beneficial owner of the shares of Common Stock held by us in your account
but not registered in your name. A subscription for Capital Securities can be
made only by us as the holder of record and pursuant to your instructions. THE
SUBSCRIPTION FORM IS FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE
USED BY YOU TO SUBSCRIBE FOR CAPITAL SECURITIES.
We request instructions as to whether you wish to subscribe for Capital
Securities upon the terms and subject to the conditions set forth in the
Prospectus and the related Subscription Form.
Your attention is invited to the following:
1. Holders may subscribe for Capital Securities as indicated in the
Instructions attached hereto.
2. The offer to subscribe expires at 5:00 p.m., New York City time, on
October __, 1997, unless otherwise extended by New York Bancorp.
3. You may subscribe for that number of whole Capital Securities
(rounded down to the nearest whole Capital Security) purchasable
pursuant to your Pro Rata Subscription Right and may also exercise
your Excess Subscription Right, in each case, at a price of $25.00
per Capital Security.
NYFS10...:\81\65281\0001\1819\OFF9127U.33B
<PAGE>
If you wish to have us subscribe for Capital Securities on your behalf,
please so instruct us by completing, executing and returning to us the
instruction form attached hereto. An envelope to return your instructions to us
is enclosed. YOUR INSTRUCTIONS SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT
US TO MAKE SUITABLE ARRANGEMENTS WITH YOU FOR PAYMENT OF THE APPLICABLE
AGGREGATE PURCHASE PRICE AND TO SUBMIT A SUBSCRIPTION ON YOUR BEHALF BEFORE THE
EXPIRATION DATE.
BY PROVIDING THE INSTRUCTIONS CONTAINED HEREIN TO US, YOU WILL BE DEEMED
TO HAVE SUBSCRIBED FOR THE NUMBER OF CAPITAL SECURITIES SPECIFIED AND TO HAVE
COMMITTED TO MAKE PAYMENT OF THE APPLICABLE AGGREGATE PURCHASE PRICE FOR THE
CAPITAL SECURITIES SO SUBSCRIBED.
2
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE OFFER TO SUBSCRIBE FOR
8.00% CONVERTIBLE TRUST PREFERRED SECURITIES
(THE "CAPITAL SECURITIES") OF
NEW YORK BANCORP CAPITAL TRUST
The undersigned acknowledge(s) receipt of your letter, the enclosed
Prospectus dated September __, 1997 and the related Subscription Form, in
connection with the offer by New York Bancorp Capital Trust (the "Trust") to
each holder of the outstanding shares of common stock, par value $0.01 per share
(the "Common Stock") of New York Bancorp Inc. ("New York Bancorp") to subscribe
for that number of Capital Securities (rounded down to the nearest whole Capital
Security as indicated in the box below) purchasable pursuant to such Holder's
Pro Rata Subscription Right and Excess Subscription Right (each as defined in
the Subscription Form), at a price of $25.00 per Capital Security.
This will instruct you to deliver to The Bank of New York, as Sales Agent,
a Subscription Form subscribing for the number of Capital Securities indicated
below purchasable by the undersigned pursuant to the undersigned's Pro Rata
Subscription Right and Excess Subscription Right relating to the shares of
Common Stock held by you for the account of the undersigned, upon the terms and
subject to the conditions set forth in the Prospectus and the related
Subscription Form.
3
<PAGE>
BOX 1
- --------------------------------------------------------------------------------
NAME AND ADDRESS OF REGISTERED HOLDER OR DTC PARTICIPANT AND DTC
PARTICIPANT NUMBER (IF PARTY HOLDS AS DTC PARTICIPANT):
- --------------------------------------------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
- --------------------------------------------------------------------------------
NUMBER OF SHARES OF NEW YORK BANCORP COMMON STOCK OWNED BY THE HOLDER AS OF
SEPTEMBER 18, 1997:
- --------------------------------------------------------------------------------
AGGREGATE PAYMENT TENDERED HEREWITH AGGREGATE NUMBER OF CAPITAL SECURITIES
PURSUANT TO PRO RATA SUBSCRIBED FOR PURSUANT TO PRO RATA
SUBSCRIPTION RIGHT SUBSCRIPTION RIGHT
(Number of Capital Securities indicated (Maximum equals the number of shares of
box to the right multiplied by $25) Common Stock held by you as of
September 18, 1997 multiplied by
.0938, rounded down to the
nearest whole Capital Security)
- --------------------------------------------------------------------------------
$ Capital Securities
----------- ------------
- --------------------------------------------------------------------------------
AGGREGATE PAYMENT TENDERED HEREWITH AGGREGATE NUMBER OF CAPITAL SECURITIES
PURSUANT TO EXCESS SUBSCRIBED FOR PURSUANT TO
SUBSCRIPTION RIGHT EXCESS SUBSCRIPTION RIGHT
(Number of Capital Securities indicated (Number of additional Capital
in box to the right multiplied by $25) Securities you wish to purchase
in excess of the number
indicated above)
- --------------------------------------------------------------------------------
$ Capital Securities
----------- ------------
- --------------------------------------------------------------------------------
METHOD OF PAYMENT
- --------------------------------------------------------------------------------
|_| Certified or cashier's check enclosed, payable to New York Bancorp
Capital Trust.
|_| Money order enclosed, payable to New York Bancorp Capital Trust.
|_| Personal check enclosed, payable to New York Bancorp Capital Trust.
In the event that any Subscriptions are not accepted by New York Bancorp or the
Trust, all documents submitted by the Holder, and all amounts delivered in
payment of the purchase price for Capital Securities, will be returned as
promptly as practicable following the expiration or termination of the
Subscription Offering.
- --------------------------------------------------------------------------------
4
<PAGE>
BOX 2
- --------------------------------------------------------------------------------
IMPORTANT -- READ CAREFULLY
Holder(s) must execute this Subscription Form exactly as their name(s)
appear(s) on the register of Common Stock. In the event shares of Common Stock
are held by Authorized DTC Participant(s), such Authorized DTC Participant(s)
must execute this Subscription Form exactly as their name(s) are registered with
DTC. If the shares of Common Stock are held of record by two or more joint
registered Holders, all such Holders must sign this Subscription Form. If
signature is 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 must submit proper
evidence satisfactory to New York Bancorp and the Trust of such person's
authority so to act.
SIGN HERE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Signature of Holder(s)
Dated:
----------------------------------------------------------------------
Name(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
(Please Print)
Capacity:
----------------------------------------------------------------------
Address:
----------------------------------------------------------------------
Area Code and Telephone No.: ( )
-----------------------------------------------
Tax Identification or Social Security No.:
-----------------------------------------------
- --------------------------------------------------------------------------------
5
EXHIBIT 5.1
[Letterhead of Richards, Layton & Finger]
September 17, 1997
New York Bancorp Capital Trust
c/o New York Bancorp Inc.
241-02 Northern Boulevard
Douglaston, NY 11362
RE: NEW YORK BANCORP CAPITAL TRUST
------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for New York Bancorp Inc.,
a Delaware corporation (the "Company"), and New York Bancorp Capital Trust, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of August 28,
1997 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on August 28, 1997;
(b) The Declaration of Trust of the Trust, dated as of August 28,
1997, by and among the Company and the trustees of the Trust named therein;
<PAGE>
New York Bancorp Capital Trust
September 17, 1997
Page 2
(c) A form of Amended and Restated Declaration of Trust of the Trust
(including Exhibits A-1 and B-1 thereto) (the "Declaration"), to be entered into
among the Company, as sponsor, the trustees of the Trust named therein, the
Administrators and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust, attached as an exhibit to the Registration
Statement (as defined below);
(d) Amendment No. 1 to the Registration Statement on Form S-3 (the
"Registration Statement"), including a preliminary prospectus (the
"Prospectus"), relating to the 8.00% Convertible Trust Preferred Securities of
the Trust representing undivided beneficial interests in the assets of the Trust
(each, a "Capital Security" and collectively, the "Capital Securities"), as
proposed to be filed by the Company and the Trust with the Securities and
Exchange Commission on or about September 17, 1997; and
(e) A Certificate of Good Standing for the Trust, dated September
17, 1997, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined
are used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (e) above. In
particular, we have not reviewed any document (other than the documents listed
in paragraphs (a) through (e) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent with
the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i)
the authenticity of all documents submitted to us as authentic originals, (ii)
the conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Declaration and the
Certificate are in full force and effect and have
<PAGE>
New York Bancorp Capital Trust
September 17, 1997
Page 3
not been amended, (ii) except to the extent provided in paragraph 1 below, the
due creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Capital Security is to be issued by the Trust
(collectively, the "Capital Security Holders") of a Certificate Evidencing
Capital Securities (substantially in the form of Exhibit A-1 to the Declaration)
and the consideration for the Capital Security acquired by it, in accordance
with the Declaration and the Registration Statement, and (vii) that the Capital
Securities are issued to the Capital Security Holders in accordance with the
Declaration and the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Business Trust Act.
2. The Capital Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Capital Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Capital Security
Holders may be obligated to make payments as set forth in the Declaration.
<PAGE>
New York Bancorp Capital Trust
September 17, 1997
Page 4
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
EXHIBIT 5.2
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NY 10153
212-310-8000
(FAX) 212-310-8007
September 19, 1997
New York Bancorp Inc.
241-02 Northern Boulevard
Douglaston, New York 11362
Gentlemen:
We have acted as counsel to New York Bancorp Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing of a
Registration Statement on Form S-3 (Registration Nos. 333-34675 and
333-34675-01), as amended (the "Registration Statement"), under the Securities
Act of 1933, as amended, with respect to $51,500,000 aggregate principal amount
of 8.00% Junior Convertible Subordinated Debentures due 2027 (the "Debentures")
of the Company, $50,000,000 aggregate liquidation amount of 8.00% Convertible
Trust Preferred Securities (the "Capital Securities") of New York Bancorp
Capital Trust, a business trust created under the laws of the State of Delaware
(the "Trust"), shares of common stock, par value $0.01 per share, of the Company
(the "Common Stock") issuable upon conversion of the Debentures and Capital
Securities (the "Conversion Shares") and the guarantee with respect to the
Capital Securities (the "Guarantee") to be executed and delivered by the Company
for the benefit of the holders from time to time of the Capital Securities.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Registration Statement, the
Prospectus that is a part of the Registration Statement (the "Prospectus"), the
form of Amended and Restated Declaration of Trust (the "Declaration") among the
Company, as Sponsor, The Bank of New York, as Property Trustee, The Bank of New
York (Delaware), as Delaware Trustee, the administrators named therein and the
holders from time to time of beneficial interests in the assets of the Trust,
the form of Indenture (the "Indenture") between the Company and The Bank of New
York, as Trustee (the "Trustee"), the form of Debenture set forth in the
Indenture, the form of Guarantee, and such corporate records, agreements,
documents and other instruments, and such certificates or comparable documents
of public officials and of
NYFS04...:\81\65281\0001\1819\OPN9117P.59A
<PAGE>
New York Bancorp Inc.
September 19, 1997
Page 2
officers and representatives of the Company, and have made such inquiries of
such officers and representatives of the Company as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to this opinion that have not been independently established,
we have relied upon certificates or comparable documents of officers and
representatives of the Company. We have also assumed (i) the due incorporation
and valid existence of the Company, (ii) that the Company has the requisite
corporate power and authority to enter into and perform its obligations under
the Declaration, the Indenture, the Debentures and the Guarantee and (iii) the
due authorization, execution and delivery of the Declaration, the Indenture, the
Debentures and the Guarantee by the Company.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that when the Declaration, the Indenture and the
Guarantee will have been duly authorized, executed and delivered by the parties
thereto:
1. The Debentures, when duly authenticated by the Trustee pursuant
to the terms of the Indenture, and delivered and paid for in accordance with the
terms of the Indenture and as contemplated by the Registration Statement, will
be validly issued and will constitute the legally binding obligations of the
Company, entitled to the benefits of the Indenture, in accordance with their
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity).
2. The Guarantee will constitute the legally binding obligation of
the Company, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally,
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and
<PAGE>
New York Bancorp Inc.
September 19, 1997
Page 3
fair dealing (regardless of whether enforcement is sought in a proceeding at
law or in equity).
3. When certificates representing the Conversion Shares will have
been manually signed by an authorized officer of the transfer agent and
registrar for the Common Stock, registered by such transfer agent and registrar
and delivered to the holders of Capital Securities upon conversion thereof in
accordance with the terms of the Declaration and the Indenture, the Conversion
Shares will have been duly authorized and will be validly issued, fully paid and
nonassessable.
The opinions herein are limited to the laws of the State of New York
and the corporate laws of the State of Delaware, and we express no opinion as to
the effect on the matters covered by this opinion of the laws of any other
jurisdiction.
The opinions expressed herein are rendered solely for your benefit
in connection with the transactions described herein. Those opinions may not be
used or relied upon by any other person, nor, except as provided below, may this
letter or any copies hereof be furnished to a third party, filed with a
governmental agency, quoted, cited or otherwise referred to without our prior
written consent.
We understand that you have received an opinion from Richards,
Layton & Finger, LLP, special Delaware counsel for the Company and the Trust. We
are expressing no opinion with respect to the matters contained in such opinion.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. We also consent to any and all references to our firm
under the caption "Legal Matters" in the Prospectus.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
EXHIBIT 8.1
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NY 10153
212-310-8000
(FAX) 212-310-8007
September 19, 1997
New York Bancorp Inc.
241-02 Northern Boulevard
Dougleston, New York 11362
Re: NEW YORK BANCORP CAPITAL
TRUST 8.00% CONVERTIBLE
TRUST PREFERRED SECURITIES
--------------------------
Ladies and Gentlemen:
We have acted as counsel to New York Bancorp Inc., a Delaware
corporation (the "Depositor"), and New York Bancorp Capital Trust, a Delaware
business trust (the "Trust"), in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") of the Registration
Statement on Form S-3, as amended to the date hereof (the "Registration
Statement") under the Securities Act of 1933, as amended, and of the Prospectus
that is a part thereof (the "Prospectus") with respect to 2,000,000 New York
Bancorp Capital Trust 8.00% Convertible Trust Preferred Securities (the "Capital
Securities"). All capitalized terms not otherwise defined herein shall have the
same meaning ascribed thereto in the Prospectus.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Registration Statement, the
Prospectus, the Amended and Restated Declaration of Trust, the forms of Capital
Securities and Common Securities, the forms of Indenture, Guarantee and the
Common Guarantee Agreement (collectively, the "Agreements"). In addition, we
have examined originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records, agreements, documents and other
instruments, and have made such inquiries of such officers and representatives
of the Depositor, as we have deemed relevant and necessary as a basis for the
opinion hereinafter set forth.
NYFS10...:\81\65281\0001\2051\OPN9117R.280
<PAGE>
New York Bancorp Inc.
September 19, 1997
Page 2
In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such latter
documents. We have further assumed (i) that the Agreements as executed and
delivered by the requisite signatories thereto will conform in substance and
form in all material respects to the respective forms thereof examined by us,
(ii) timely compliance by all parties to the Agreements to the terms thereof
(without waiver or amendment of any of the terms thereof) and (iii) that the
Agreements constitute all the agreements, arrangements and understandings
between the parties thereto with respect to the transactions contemplated
therein and that the representations and warranties contained therein are true.
The terms of the Agreements and the Capital Securities are
incorporated herein by reference.
Based on the foregoing, it is our opinion that the statements
contained in the Prospectus, under the caption "Certain Federal Income Tax
Considerations", insofar as such statements constitute matters of law or legal
conclusions and except to the extent qualified therein, are correct in all
material respects.
The foregoing opinion is based on current provisions of the Internal
Revenue Code of 1986, as amended, the Treasury Regulations promulgated
thereunder (including proposed Treasury Regulations), published pronouncements
of the Internal Revenue Service, and case law, any of which may be changed at
any time with retroactive effect. We express no opinion as to the effect on the
matters covered by this opinion of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion with the Commission
as an exhibit to the Registration Statement and to the references to our firm
under the captions "Certain Federal Income Tax Considerations" and "Legal
Matters" in the Prospectus. This opinion may not be used for any other purpose
and may not otherwise be relied upon by, or disclosed to, any other person,
quoted or referred to.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
EXHIBIT 23.1
CONSENT OF INDEPENDANT CERTIFIED PUBLIC ACCOUNTANTS
---------------------------------------------------
The Board of Directors of
New York Bancorp, Inc.
We consent to the incorporation by reference in Amendment No. 1 to the
registration statement on Form S-3 of New York Bancorp Inc. of our report dated
October 29, 1996, related to the consolidated statements of financial condition
of New York Bancorp Inc. as of September 30, 1996 and 1995, and the related
consolidated statements of income, changes in shareholders' equity and cash
flows for each of the years in the three-year period ended September 30, 1996,
which report is included in the 1996 Annual Report to Shareholders of New York
Bancorp Inc. and has been incorporated by reference in the September 30, 1996
Annual Report on Form 10-K of New York Bancorp Inc., and to the reference to our
firm under the headings "Selected Consolidated Financial and Other Data" and
"Experts" in Amendment No. 1 to the registration statement.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Jericho, New York
September 17, 1997
EXHIBIT 25.1
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED PURSUANT TO
RULE 901(d) OF REGULATION S-T
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
NEW YORK BANCORP CAPITAL TRUST
(Exact name of obligor as specified in its charter)
Delaware Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
c/o New York Bancorp Inc.
241-02 Northern Boulevard
Douglaston, New York 11362
(Address of principal executive offices) (Zip code)
----------------------
8.00% Convertible Trust Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
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
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, 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 12th day of September, 1997.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
---------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1997,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 8,249,820
Interest-bearing balances .......... 1,031,026
Securities:
Held-to-maturity securities ........ 1,118,463
Available-for-sale securities ...... 3,005,838
Federal funds sold and Securities pur-
chased under agreements to resell...... 3,100,281
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................32,895,077
LESS: Allowance for loan and
lease losses ..............633,877
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 32,260,771
Assets held in trading accounts ...... 1,715,214
Premises and fixed assets (including
capitalized leases) ................ 684,704
Other real estate owned .............. 21,738
Investments in unconsolidated
subsidiaries and associated
companies .......................... 195,761
Customers' liability to this bank on
acceptances outstanding ............ 1,152,899
Intangible assets .................... 683,503
Other assets ......................... 1,526,113
-----------
Total assets ......................... $54,746,131
===========
LIABILITIES
Deposits:
In domestic offices ................ $25,614,961
Noninterest-bearing ......10,564,652
Interest-bearing .........15,050,309
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 15,103,615
Noninterest-bearing .........560,944
Interest-bearing .........14,542,671
Federal funds purchased and Securities
sold under agreements to repurchase. 2,093,286
Demand notes issued to the U.S.
Treasury ........................... 239,354
Trading liabilities .................. 1,399,064
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,075,092
With remaining maturity of more than
one year ......................... 20,679
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,160,012
Subordinated notes and debentures .... 1,014,400
Other liabilities .................... 1,840,245
-----------
Total liabilities .................... 50,560,708
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 731,319
Undivided profits and capital
reserves .......................... 2,544,303
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 19,449)
Cumulative foreign currency transla-
tion adjustments .................. ( 13,034)
------------
Total equity capital ................ 4,185,423
-----------
Total liabilities and equity
capital ........................... $54,746,131
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
Alan R. Griffith |
J. Carter Bacot | Directors
Thomas A. Renyi |
-
EXHIBIT 25.2
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED PURSUANT TO
RULE 901(d) OF REGULATION S-T
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
---------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------------
NEW YORK BANCORP INC.
(Exact name of obligor as specified in its charter)
Delaware 11-2869250
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
241-02 Northern Boulevard
Douglaston, New York 11362
Address of principal executive offices) (Zip code)
----------------------
Junior Convertible Subordinated Debentures
(Title of the indenture securities)
================================================================================
<PAGE>
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
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, 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 12th day of September, 1997.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
-------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1997,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 8,249,820
Interest-bearing balances .......... 1,031,026
Securities:
Held-to-maturity securities ........ 1,118,463
Available-for-sale securities ...... 3,005,838
Federal funds sold and Securities pur-
chased under agreements to resell...... 3,100,281
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................32,895,077
LESS: Allowance for loan and
lease losses ..............633,877
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 32,260,771
Assets held in trading accounts ...... 1,715,214
Premises and fixed assets (including
capitalized leases) ................ 684,704
Other real estate owned .............. 21,738
Investments in unconsolidated
subsidiaries and associated
companies .......................... 195,761
Customers' liability to this bank on
acceptances outstanding ............ 1,152,899
Intangible assets .................... 683,503
Other assets ......................... 1,526,113
-----------
Total assets ......................... $54,746,131
===========
LIABILITIES
Deposits:
In domestic offices ................ $25,614,961
Noninterest-bearing ......10,564,652
Interest-bearing .........15,050,309
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 15,103,615
Noninterest-bearing .........560,944
Interest-bearing .........14,542,671
Federal funds purchased and Securities
sold under agreements to repurchase. 2,093,286
Demand notes issued to the U.S.
Treasury ........................... 239,354
Trading liabilities .................. 1,399,064
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,075,092
With remaining maturity of more than
one year ......................... 20,679
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,160,012
Subordinated notes and debentures .... 1,014,400
Other liabilities .................... 1,840,245
-----------
Total liabilities .................... 50,560,708
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 731,319
Undivided profits and capital
reserves .......................... 2,544,303
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 19,449)
Cumulative foreign currency transla-
tion adjustments .................. ( 13,034)
------------
Total equity capital ................ 4,185,423
-----------
Total liabilities and equity
capital ........................... $54,746,131
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
Alan R. Griffith |
J. Carter Bacot | Directors
Thomas A. Renyi |
-
EXHIBIT 25.3
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED
PURSUANT TO RULE 901(d) OF REGULATION S-T
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
-------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-------------------
NEW YORK BANCORP INC.
(Exact name of obligor as specified in its charter)
Delaware 11-2869250
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
241-02 Northern Boulevard
Douglaston, New York 11362
(Address of principal executive offices) (Zip code)
-------------------
Guarantee of Capital Securities of
New York Bancorp Capital Trust
(Title of the indenture securities)
================================================================================
<PAGE>
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
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, 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 12th day of September, 1997.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
--------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1997,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 8,249,820
Interest-bearing balances .......... 1,031,026
Securities:
Held-to-maturity securities ........ 1,118,463
Available-for-sale securities ...... 3,005,838
Federal funds sold and Securities pur-
chased under agreements to resell...... 3,100,281
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................32,895,077
LESS: Allowance for loan and
lease losses ..............633,877
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 32,260,771
Assets held in trading accounts ...... 1,715,214
Premises and fixed assets (including
capitalized leases) ................ 684,704
Other real estate owned .............. 21,738
Investments in unconsolidated
subsidiaries and associated
companies .......................... 195,761
Customers' liability to this bank on
acceptances outstanding ............ 1,152,899
Intangible assets .................... 683,503
Other assets ......................... 1,526,113
-----------
Total assets ......................... $54,746,131
===========
LIABILITIES
Deposits:
In domestic offices ................ $25,614,961
Noninterest-bearing ......10,564,652
Interest-bearing .........15,050,309
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 15,103,615
Noninterest-bearing .........560,944
Interest-bearing .........14,542,671
Federal funds purchased and Securities
sold under agreements to repurchase. 2,093,286
Demand notes issued to the U.S.
Treasury ........................... 239,354
Trading liabilities .................. 1,399,064
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,075,092
With remaining maturity of more than
one year ......................... 20,679
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,160,012
Subordinated notes and debentures .... 1,014,400
Other liabilities .................... 1,840,245
-----------
Total liabilities .................... 50,560,708
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 731,319
Undivided profits and capital
reserves .......................... 2,544,303
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 19,449)
Cumulative foreign currency transla-
tion adjustments .................. ( 13,034)
------------
Total equity capital ................ 4,185,423
-----------
Total liabilities and equity
capital ........................... $54,746,131
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
Alan R. Griffith |
J. Carter Bacot | Directors
Thomas A. Renyi |
-
EXHIBIT 99.2
SECURITIES OFFERING QUESTIONS AND ANSWERS
The Board of Directors of New York Bancorp Inc. ("New York Bancorp" or the
"Company") has unanimously approved the issuance of $50 million of 8.00%
Convertible Trust Preferred Securities ("Securities"). New York Bancorp has
established a trust, New York Bancorp Capital Trust, that will issue the
Securities under the proposed terms of the offering. The Securities will pay
distributions of 8.00% per annum and will be convertible at the option of the
holder into New York Bancorp common stock at a price and pursuant to a formula
discussed below. The Securities will be subject to mandatory redemption by the
Company on October 31, 2027.
The Board of Directors of New York Bancorp has determined to make the
Securities first available to New York Bancorp common stockholders through a
subscription offering. Any Securities not purchased by common stockholders will
be offered to the public in an underwritten offering by Keefe, Bruyette & Woods,
Inc. The subscription offering which begins on September , 1997 will end at 5:00
P.M. (New York City time) on October , 1997.
THE INFORMATION SET FORTH HEREIN IS INCOMPLETE AND STOCKHOLDERS MUST REFER TO,
AND READ IN ITS ENTIRETY, THE ACCOMPANYING PROSPECTUS FOR A COMPLETE DESCRIPTION
OF THE OFFERING, THE TERMS OF THE SECURITIES AND OTHER RELEVANT INFORMATION.
INVESTMENT IN THE SECURITIES INVOLVES CERTAIN RISKS. FOR A DISCUSSION OF THESE
RISKS AND OTHER FACTORS INVESTORS ARE URGED TO READ THE ACCOMPANYING PROSPECTUS
UNDER THE HEADING "RISK FACTORS" ON PAGE 9.
QUESTION: Why is New York Bancorp issuing Securities?
ANSWER: New York Bancorp is issuing the Securities as a means of raising
capital at a reasonable cost. The net proceeds from the Securities
will be available to the Company for general corporate purposes,
including, without limitation, the purchase, from time to time, in
the open market or in privately-negotiated transactions, of
outstanding shares of New York Bancorp Common Stock and the making
of advances and capital contributions to Home Federal Savings Bank,
as well as in connection with one or more possible future
acquisitions by the Company.
QUESTION: Why is there a subscription offering?
ANSWER: The Board of Directors of New York Bancorp has decided to provide a
subscription offering whereby non-transferable subscription rights
will entitle each stockholder as of September 18, 1997, the
established record date, to
NYFS10...:\81\65281\0001\1819\OFF9167R.54B
<PAGE>
purchase up to the same percentage of the Securities as the
percentage of the outstanding shares of Common Stock owned and
thereby maintain his same percentage ownership in the Company on a
fully diluted basis.
QUESTION: Will I receive a discount on the price of the Securities?
ANSWER: No. The offering price of the Securities will be the same for
everyone.
QUESTION: How many Securities are being offered and at what price?
ANSWER: There are 2,000,000 Securities being offered at a price of $25.00
per Security.
QUESTION: How many Securities can I purchase?
ANSWER: Based on the number of shares of Common Stock outstanding on
September 18, 1997, each stockholder would be entitled to purchase
.0938 of a Security for each share of Common Stock held as of such
date. For example, if a common stockholder owned 1,000 shares of New
York Bancorp stock, such stockholder would be entitled to purchase
up to 93 Securities.
Each stockholder also is being given the opportunity to indicate on
the Subscription Form whether such stockholder wishes to purchase,
in the event the Subscription Offering is not fully subscribed,
Securities in excess of the .0938 pro rata share. In the event the
aggregate requests in the subscription offering exceed the 2,000,000
Securities being offered, stockholders' requests for Securities
above their .0938 pro rata share amount will be allocated ratably
based on the number of Securities sought and Common Stock owned on
the record date.
QUESTION: How do I order the Securities?
ANSWER: You may subscribe for Securities by completing and returning the
Subscription Form, together with your payment, in the postage-paid
envelope that has been provided.
QUESTION: How can I pay for the Securities?
ANSWER: You can pay for the Securities by certified, cashier's or personal
check, or money order. In order for the subscription to be eligible
for exercise, funds
2
<PAGE>
must be available to New York Bancorp Capital Trust on or prior to
the expiration date of the subscription offering. Funds paid by
uncertified personal check may take at least five business days to
clear, in the case of checks drawn on domestic banks, and seven
business days in the case of checks drawn on foreign banks.
Accordingly, stockholders who wish to pay for the subscribed
Securities by means of uncertified personal check are urged to make
payment sufficiently in advance of the expiration date of the
subscription offering to ensure that the payment is received and
clears by that time, and are urged to consider in the alternative
payment by means certified or cashier's check or money order.
QUESTION: Can I subscribe for the Securities using funds from an IRA account?
ANSWER: No IRA as to which the Company or Home Federal Savings Bank serves
as the custodian should acquire any Securities. Other
"self-directed" IRAs may purchase Securities. If an IRA does not
permit self-direction, then a new IRA permitting self-direction may
be established (but not with the Company or Home Federal Savings
Bank as the custodian) with a transfer of funds from the existing
IRA. TRANSFER OF SUCH FUNDS TAKES TIME, SO, PLEASE MAKE ARRANGEMENTS
AS SOON AS POSSIBLE.
QUESTION: Is the 8.00% rate at which distributions are made fixed, and when
will the distributions be paid?
ANSWER: The rate of 8.00% per annum is fixed and is payable on January 31st,
April 30th, July 31st, and October 31st of each year, commencing
January 31st 1998, to holders of record at the close of business on
the 15th day of the month in which the relevant payment date falls.
The Company may defer distributions on the Securities for extended
periods of time as described in the Prospectus. Stockholders must
read the Prospectus for a description of this deferral right and the
other terms of the Securities, and the income tax considerations
relating thereto.
QUESTION: How do the Securities convert into New York Bancorp Common Stock and
at what price?
ANSWER: Each Security is convertible at the option of the holder into a
number of shares of Common Stock that equals the quotient obtained
by dividing (i) $25.00 by (ii) 110% of the average of the daily last
reported sales prices of the Common Stock for the ten consecutive
trading days immediately preceding the date of the Prospectus to be
used in the public offering or, in the event all of the
3
<PAGE>
Securities offered are sold in the subscription offering, for the
ten consecutive trading days immediately preceding October , 1997.
For example, if the ten day pricing period were to have ended on
September 15, 1997, the average of the daily last reported sales
prices of the Common Stock for the ten consecutive trading days
would have amounted to $30.61. Consequently, the holder, in this
example, upon conversion of one Security, would receive .7425 shares
of Common Stock, calculated by dividing $25.00 by $33.67 (110% of
$30.61).
QUESTION: Over what period of time will I be able to convert my Securities
into Common Stock?
ANSWER: Each Security is convertible at the option of the holder thereof, at
any time prior to the earlier of (i) mandatory redemption (October
31, 2027), (ii) an optional redemption by the Company upon the
occurrence of a Special Tax Event, Regulatory Capital Event, or an
Investment Company Event (as defined in the Prospectus), or (iii) an
optional redemption by the Company any time after an initial four
year period.
Separate and distinct from the optional redemption provisions cited
above, on or after an initial four year period, the Company, subject
to certain conditions including advance public notice, may cause the
conversion rights to terminate, provided that the price of the
Common Stock exceeds 110% of the conversion price for a specified
period of time.
QUESTION: Where will the Securities be traded?
ANSWER: The Company intends to apply to have the Securities approved for
listing on the New York Stock Exchange, subject to official notice
of issuance.
QUESTION: What if I have additional questions or require more information?
ANSWER: If you have any question regarding the offering or need additional
information, please call Richard Grubaugh at Beacon Hill Partners,
Inc. at (800) 854-9486.
This is not an offer to sell or solicitation of an offer to buy Securities. The
offer is made only by the Prospectus.
4
