<PAGE>
As filed with the Securities and Exchange Commission on February 18, 2000
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
<TABLE>
<S> <C>
Astoria Financial Corporation Astoria Capital Trust I
(Exact name of Registrant as specified in its charter) (Exact name of Co-Registrant as specified in its trust agreement)
Delaware Delaware
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
6035 6719
(Primary Standard Industrial (Primary Standard Industrial
Classification Code Number) Classification Code Number)
11-3170868 11-6537234
(I.R.S. Employer (I.R.S. Employer
Identification No.) Identification No.)
One Astoria Federal Plaza
Lake Success, New York 11042-1085
(516) 327-3000
(Address, including zip code, and telephone number,
including area code, of Registrant's and Co-Registrant's principal executive offices)
George L. Engelke, Jr. Alan P. Eggleston, Esq.
Chairman, President and Chief Executive Officer Executive Vice President and General Counsel
Astoria Financial Corporation Astoria Financial Corporation
One Astoria Federal Plaza One Astoria Federal Plaza
Lake Success, New York 11042-1085 Lake Success, New York 11042-1085
(516) 327-3000 (516) 327-3000
(Name, address, including zip code, and telephone number, including area code, of agents for service)
Copies to:
Robert C. Azarow, Esq.
Omer S.J. Williams, Esq.
Thacher Proffitt & Wood
Two World Trade Center
New York, New York 10048
(212) 912-7400
</TABLE>
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, 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, 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, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
<TABLE>
<CAPTION>
________________
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of Each Class of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Unit(1) Aggregate Offering Price(1) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Exchange Capital Securities
of Astoria Capital Trust I 125,000 $1,000 $125,000,000 $33,000
- ------------------------------------------------------------------------------------------------------------------------------------
Exchange Junior Subordinated Debenture
of Astoria Financial Corporation(2) -- -- -- --
- ------------------------------------------------------------------------------------------------------------------------------------
Astoria Financial Corporation Exchange
Guarantee with respect to Exchange -- -- -- --
Capital Securities(2)
- ------------------------------------------------------------------------------------------------------------------------------------
Total(3) 125,000 $1,000 $125,000,000(4) $33,000
====================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee.
(2) No separate consideration will be received for the Exchange Junior
Subordinated Debentures of Astoria Financial Corporation distributed upon
any liquidation of Astoria Capital Trust I, and no separate consideration
will be received for the Astoria Financial Corporation Exchange Guarantee.
(3) This Registration Statement is deemed to cover rights of holders of
Exchange Junior Subordinated Debentures under the Indenture, the rights of
holders of Exchange Capital Securities of Astoria Capital Trust I under an
Amended and Restated Declaration of Trust, the rights of holders of such
Exchange Capital Securities under the Exchange Guarantee and certain backup
undertakings as described in this Registration Statement.
(4) Such amount represents the liquidation amount of the Exchange Capital
Securities to be exchanged hereunder and the principal amount of Exchange
Junior Subordinated Debentures that may be distributed to holders of such
Exchange Capital Securities upon any liquidation of Astoria Capital Trust I.
________________
The Registrants hereby amend this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrants shall file
a further amendment which specifically states that this Registration Statement
shall 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 Commission, acting pursuant to Section 8(a), may determine.
<PAGE>
PROSPECTUS
ASTORIA CAPITAL TRUST I
Offer to Exchange its
9.75% Capital Securities, Series B
(liquidation amount $1,000 per capital security)
Which Have Been Registered Under The Securities Act of 1933
For Any and All Of Its Outstanding
9.75% Capital Securities, Series A
(liquidation amount $1,000 per capital security)
Fully and unconditionally guaranteed,
to the extent described in this prospectus, by
[LOGO OF ASTORIA FINANCIAL CORPORATION]
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
5:00 P.M., NEW YORK CITY TIME ON , 2000, UNLESS EXTENDED.
Astoria Capital Trust I is offering and selling upon the terms and subject
to the conditions described in this prospectus, as amended and supplemented from
time to time, and in the accompanying letter of transmittal, which together
constitute the exchange offer, to exchange up to and including $125,000,000
aggregate liquidation amount of its 9.75% capital securities, Series B, referred
to as the exchange capital securities, which have been registered under the
Securities Act of 1933, as amended, by a registration statement of which this
prospectus is a part, for a like amount of its outstanding 9.75% capital
securities, Series A, referred to as the original capital securities, of which
$125,000,000 aggregate liquidation amount are issued and outstanding.
This prospectus and the letter of transmittal are first being mailed to all
holders of the 9.75% capital securities, Series A on or about ,
2000.
See "Risk Factors" beginning on page 20 to read about the risks that you
should consider in deciding whether to tender the 9.75% capital securities,
Series A in the exchange offer.
These securities are not deposits or accounts and are not insured by the
Federal Deposit Insurance Corporation or any other government agency.
Neither the Securities and Exchange Commission nor any state securities
commission or regulator has approved or disapproved these securities or
determined that this prospectus is accurate or complete. It is illegal for
anyone to tell you otherwise.
The date of this Prospectus is , 2000.
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AVAILABLE INFORMATION
Astoria Financial Corporation is subject to the informational requirements
of the Securities Exchange Act of 1934, as amended, referred to as the Exchange
Act, and, in accordance therewith, files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information may be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the Commission's regional offices at 7 World Trade Center,
13th Floor, Suite 1300, New York, New York 10048 and Suite 1400, Citicorp
Center, 500 West Madison Street, Chicago, Illinois 60661. You may also obtain
copies of such material by mail from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. If available, you may also access such information through the
Commission's electronic data gathering, analysis and retrieval system, commonly
referred to as EDGAR, via electronic means, including the Commission's home page
on the Internet (http://www.sec.gov). The common stock of Astoria Financial is
traded on the Nasdaq National Market under the symbol "ASFC." You may inspect
the reports, proxy statements and other information concerning us at the offices
of the National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington D.C. 20006.
No separate financial statements of the Trust have been included in this
prospectus and no separate financial statements will be prepared in the future.
We do not consider that such financial statements would be material to holders
of the exchange capital securities offered by this prospectus because: (i) the
Trust is a newly-formed special purpose entity, (ii) has no operating history or
independent operations and (iii) is not engaged in and does not propose to
engage in any activity other than holding as trust assets our junior
subordinated debentures, issuing the capital and common securities, collectively
referred to as the trust securities, and engaging in incidental activities. We
do not expect that the Trust will file reports, proxy statements and other
information under the Exchange Act with the Commission.
This prospectus constitutes a part of a registration statement on Form S-4
filed by us and the Trust with the Commission under the Securities Act of 1933,
as amended, also referred to as the Securities Act. This prospectus does not
contain all the information set forth in the registration statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission, and reference is made to the registration statement and to the
exhibits relating to such registration statement for further information with
respect to Astoria Financial and the exchange securities. Any statements
contained in this prospectus concerning the provisions of any document are not
necessarily complete, and, in each instance, reference is made to the copy of
such document filed as an exhibit to the registration statement or otherwise
filed with the Commission. Each such statement is qualified in its entirety by
such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents that we have filed with the Commission are
incorporated into this prospectus by reference:
. Astoria Financial's Annual Report on Form 10-K for the year ended
December 31, 1998;
. Astoria Financial's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999;
. Astoria Financial's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999;
. Astoria Financial's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1999;
. Astoria Financial's Current Report on Form 8-K dated October 20, 1999;
and
. Astoria Financial's Current Report on Form 8-K dated February 16,
2000.
All documents subsequently filed by Astoria Financial pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus
and prior to the termination of the offering of the exchange
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capital securities offered by this prospectus shall be deemed to be incorporated
by reference into this prospectus and to be a part of this prospectus from the
date of filing of such document. Any statement contained in this prospectus or
in a document incorporated or deemed to be incorporated by reference in this
prospectus shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained in this prospectus or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference in this prospectus 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. You may obtain a copy of
our filings with the Commission at no cost, by writing or telephoning us at the
following address:
Astoria Financial Corporation
Attention: Investor Relations
One Astoria Federal Plaza
Lake Success, New York 11042
(516) 327-3000
When we refer to this prospectus, we mean not only this prospectus but also
any documents which are incorporated or deemed to be incorporated in this
prospectus by reference. You should rely only on the information incorporated
by reference or provided in this prospectus or any supplement. We have not
authorized anyone else to provide you with additional or different information.
This prospectus is used to offer and sell the exchange capital securities
referred to in this prospectus, and only under circumstances and in
jurisdictions where it is lawful to do so. The information contained in this
prospectus is current only as of the date of this prospectus.
As used in this prospectus, "we" and "us" and "our" refer to Astoria
Financial Corporation and its consolidated subsidiaries, including Astoria
Federal Savings and Loan Association, depending on the context.
FORWARD LOOKING STATEMENTS
Some of the information presented or incorporated by reference into this
prospectus contains "forward-looking" statements, and may be identified by the
use of such words as "believe," "expect," "anticipate," "should," "planned,"
"estimated" and "potential." Examples of forward-looking statements include, but
are not limited to, estimates with respect to our financial condition, results
of operations and business that are subject to various factors which could cause
actual results to differ materially from these estimates. These factors include,
but are not limited to:
. general economic conditions;
. changes in interest rates, deposit flows, loan demand, real estate
values and competition;
. changes in accounting principles, policies, or guidelines;
. changes in legislation or regulation; and
. other economic, competitive, governmental, regulatory, and
technological factors affecting our operations, pricing, products and
services.
Our actual results could vary materially from the future results covered in
our forward-looking statements. The statements in the "Risk Factors" section of
this prospectus are cautionary statements identifying important factors,
including certain risks and uncertainties, that could cause our results to vary
materially from the future results covered in such forward-looking statements.
Other factors, such as the general state of the United States economy, could
also cause actual results to vary materially from the future results covered in
such forward-looking statements. We disclaim any obligation to announce publicly
future events or developments that affect the forward-looking statements in this
prospectus.
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SUMMARY
The following information is a summary of the significant terms of the
offering of our exchange capital securities. You should carefully read this
prospectus to understand fully the terms of the exchange capital securities, as
well as the tax and other considerations that are important to you in making a
decision about whether to exchange your original capital securities for the
exchange capital securities. You should pay special attention to the "Risk
Factors" section beginning on page 20 of this prospectus to determine whether an
investment in the exchange capital securities is appropriate for you.
Astoria Financial Corporation
We are a corporation organized on June 14, 1993, and are a unitary savings
and loan association holding company for Astoria Federal Savings and Loan
Association, which we refer to as Astoria Federal. At September 30, 1999, on a
consolidated basis, we had total assets of $22.86 billion, deposits of $9.44
billion, and total stockholders' equity of $1.36 billion.
Our primary business is the operation of our wholly owned subsidiary,
Astoria Federal. In addition to directing, planning and coordinating the
business activities of Astoria Federal, we invest primarily in U.S. Government
and federal agency securities, mortgage-backed securities and other securities.
We have acquired, and may continue to acquire or organize, either directly or
indirectly through Astoria Federal, other operating subsidiaries, including
other financial institutions.
Astoria Federal's principal business is attracting retail deposits from the
general public and investing those deposits, together with funds generated from
operations, principal repayments and borrowings, primarily in one-to-four family
residential mortgage loans and mortgage-backed securities and, to a lesser
extent, multi-family residential mortgage loans, commercial real estate loans,
commercial loans and consumer loans. In addition, Astoria Federal invests in
U.S. Government and federal agency securities and in other investments permitted
by federal laws and regulations. Astoria Federal's revenues are derived
principally from interest on its mortgage loan and mortgage-backed securities
portfolios and interest and dividends on its other securities portfolio. Astoria
Federal's cost of funds consists of interest expense on deposits and borrowings.
Astoria Capital Trust I
Astoria Capital Trust I is a statutory business trust created under
Delaware law upon the filing of a certificate of trust with the Delaware
Secretary of State. The Trust's business and affairs are conducted by the
property trustee, the Delaware trustee and the three individual administrative
trustees, who are officers of Astoria Financial. The Trust exists for the
exclusive purposes of:
. issuing and selling the original capital securities and the exchange
capital securities, collectively referred to as the capital
securities;
. using the proceeds from the sale of the capital securities to acquire
junior subordinated debentures issued by Astoria Financial; and
. engaging in only those other activities necessary, advisable or
incidental to the above.
Accordingly, the junior subordinated debentures are 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 of the Trust are owned by Astoria Financial.
4
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The Exchange Offer
The Exchange Offer... Up to and including $125,000,000 aggregate liquidation
amount of exchange capital securities are being offered
in exchange for a like aggregate liquidation amount of
original capital securities. Original capital securities
may be tendered for exchange in whole or in part in a
liquidation amount of $100,000 (100 original capital
securities) or any integral multiple of $1,000 (one
original capital security) in excess of $100,000. Under
the exchange offer, we will exchange as soon as
practicable after the date of this prospectus our
$125,000,000 aggregate principal amount of junior
subordinated debentures, Series B, also referred to as
the original junior subordinated debentures, for a like
aggregate principal amount of our junior subordinated
debentures, Series A, also referred to as the exchange
debentures. We refer to the original junior subordinated
debentures and the exchange debentures collectively as
the junior subordinated debentures.
We together with the Trust are making the exchange offer
in order to satisfy our respective obligations under the
registration rights agreement relating to the original
capital securities. For a description of the procedures
for tendering original capital securities, please read
"The Exchange Offer -- Procedures for Tendering Original
Capital Securities."
Expiration Date...... 5:00 p.m., New York City time, on , 2000
unless the exchange offer is extended by us and the
Trust, in which case the expiration date will be the
latest date and time to which the exchange offer is
extended.
Conditions to the
Exchange Offer....... The exchange offer is subject to certain conditions,
which may be waived by us and the Trust in our sole
discretion. The exchange offer is not conditioned upon
any minimum liquidation amount of original capital
securities being tendered.
Terms of the
Exchange Offer....... We and the Trust reserve the right in our sole and
absolute discretion, subject to applicable law, at any
time and from time to time, (i) to delay the acceptance
of the original capital securities, (ii) to terminate
the exchange offer if certain specified conditions have
not been satisfied, (iii) to extend the expiration date
of the exchange offer and retain all original capital
securities tendered as a result of the exchange offer,
subject, however, to the right of holders of original
capital securities to withdraw their tendered original
capital securities, or (iv) to waive any condition or
otherwise amend the terms of the exchange offer in any
respect.
Withdrawal Rights.... Tenders of original capital securities may be withdrawn
at any time on or prior to the expiration date by
delivering a written notice of such withdrawal to the
exchange agent in conformity with certain procedures as
set forth under "The Exchange Offer -- Withdrawal
Rights."
Procedures for Tendering
Original Capital
Securities........... Certain brokers, dealers, commercial banks, trust
companies and other nominees who hold original capital
securities through The Depository Trust Company, or DTC,
must effect tenders by book-entry transfer through DTC's
Automated Tender Offer Program, or ATOP. Beneficial
owners of original
5
<PAGE>
capital securities registered in the name of a broker,
dealer, commercial bank, trust company or other nominee
are urged to contact such person promptly if they wish
to tender original capital securities under the exchange
offer. Tendering holders of original capital securities
that do not use ATOP must complete and sign a letter of
transmittal in accordance with the instructions
contained in such letter and forward the same by mail,
facsimile transmission or hand delivery, together with
any other required documents, to the exchange agent,
either with the certificates of the original capital
securities to be tendered or in compliance with the
specified procedures for guaranteed delivery of original
capital securities. Tendering holders of original
capital securities that use ATOP will, by so doing,
acknowledge that they are bound by the terms of the
letter of transmittal. Letters of transmittal and
certificates representing original capital securities
should not be sent to us or the Trust. Such documents
should only be sent to the exchange agent.
Resales of Exchange
Capital Securities... We and the Trust are making the exchange offer in
reliance on the position of the staff of the Commission
as set forth in certain interpretive letters addressed
to third parties in other transactions. However, neither
we nor the Trust has sought our own interpretive letter
and there can be no assurance that the staff of the
Commission would make a similar determination with
respect to the exchange offer as it has in such
interpretive letters to third parties. Based on these
interpretations by the staff of the Commission, and
subject to the two immediately following sentences, we
and the Trust believe that exchange capital securities
issued under this exchange offer in exchange for
original capital securities may be offered for resale,
resold and otherwise transferred by a holder of such
exchange capital securities, other than a holder who is
a broker-dealer, without further compliance with the
registration and prospectus delivery requirements of the
Securities Act, provided that such exchange capital
securities are acquired in the ordinary course of such
holder's business and that such holder is not
participating, and has no arrangement or understanding
with any person to participate, in a distribution,
within the meaning of the Securities Act, of such
exchange capital securities. However, any holder of
original capital securities who is an affiliate of us or
the Trust or who intends to participate in the exchange
offer for the purpose of distributing the exchange
capital securities, or any broker-dealer who purchased
the original capital securities from the Trust to resell
pursuant to Rule 144A or any other available exemption
under the Securities Act:
. will not be able to rely on the interpretations of
the staff of the Commission set forth in the above-
mentioned interpretive letters;
. will not be permitted or entitled to tender such
original capital securities in the exchange offer;
and
. must comply with the registration and prospectus
delivery requirements of the Securities Act in
connection with any sale or other transfer of such
original capital securities unless such sale is made
in reliance on an exemption from such requirements.
In addition, as described in this prospectus, if any
broker-dealer holds original capital securities acquired
for its own account as a result of market-making or
other trading activities and exchanges such original
capital securities for exchange capital securities, then
such broker-dealer must deliver a prospectus
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meeting the requirements of the Securities Act in
connection with any resales of such exchange capital
securities.
Each holder of original capital securities who wishes to
exchange original capital securities for exchange
capital securities in the exchange offer will be
required to represent that:
. it is not an affiliate of us or the Trust;
. any exchange capital securities to be received by it
are being acquired in the ordinary course of its
business;
. it has no arrangement or understanding with any
person to participate in a distribution, within the
meaning of the Securities Act, of such exchange
capital securities; and
. if such holder is not a broker-dealer, such holder is
not engaged in, and does not intend to engage in, a
distribution, within the meaning of the Securities
Act of such exchange capital securities.
Each broker-dealer that receives exchange capital
securities for its own account in exchange for original
capital securities, where such original capital
securities were acquired by such broker-dealer as a
result of market-making activities or other trading
activities, must acknowledge that it will deliver a
prospectus meeting the requirements of the Exchange Act
in connection with any resale of such exchange capital
securities. See "Plan of Distribution."
The letter of transmittal states that, by so
acknowledging and by delivering a prospectus, a broker-
dealer will not be deemed to admit that it is an
underwriter within the meaning of the Securities Act.
Based on the position taken by the staff of the
Commission in the interpretive letters referred to
above, we and the Trust believe that participating
broker-dealers who acquired original capital securities
for their own accounts as a result of market-making
activities or other trading activities may fulfill their
prospectus delivery requirements with respect to the
exchange capital securities received upon exchange of
such original capital securities, other than original
capital securities that represent an unsold allotment
from the initial sale of the original capital
securities, with a prospectus meeting the requirements
of the Securities Act, which may be the prospectus
prepared for an exchange offer so long as it contains a
description of the plan of distribution with respect to
the resale of such exchange capital securities.
Accordingly, this prospectus, as it may be amended or
supplemented from time to time, may be used by a
participating broker-dealer in connection with resales
of exchange capital securities received in exchange for
original capital securities where such original capital
securities were acquired by such participating broker-
dealer for its own account as a result of market-making
or other trading activities. Subject to certain
provisions set forth in the registration rights
agreement and to the limitations described in this
prospectus under "The Exchange Offer -- Resales of
Exchange Capital Securities," we and the Trust have
agreed that this prospectus, as it may be amended or
supplemented from time to time, may be used by a
participating broker-dealer in connection with resales
of such exchange capital securities for a period ending
90 days after the expiration date, subject to extension
under certain limited circumstances, or, if earlier,
when all such exchange capital securities have been
disposed of by such
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participating broker-dealer. Any participating broker-
dealer who is an affiliate of us or the Trust may not
rely on such interpretive letters and must comply with
the registration and prospectus delivery requirements of
the Securities Act in connection with any resale
transaction.
Exchange Agent....... The exchange agent with respect to the exchange offer is
the property trustee of the Trust, Wilmington Trust
Company. The address, telephone and facsimile number
of the exchange agent are set forth in "The Exchange
Offer -- Exchange Agent" and in the letter of
transmittal.
Use of Proceeds...... Neither we nor the Trust will receive any cash proceeds
from the issuance of the exchange capital securities.
Certain Federal Income
Tax Considerations... The exchange of original capital securities for exchange
capital securities will not be a taxable exchange for
federal income tax purposes, and you should not
recognize any taxable gain or loss or any interest
income as a result of such exchange.
ERISA Considerations. You should review the information set forth under "ERISA
Considerations" prior to tendering original capital
securities in the exchange offer.
The Exchange Capital Securities
Securities Offered... Up to $125,000,000 aggregate liquidation amount of
exchange capital securities, liquidation amount $1,000
per exchange capital security, will have been registered
under the Securities Act. The exchange capital
securities will be issued as were the original capital
securities under the amended and restated declaration of
trust, dated as of October 28, 1999, as amended,
relating to the trust by and among us, as Sponsor,
Wilmington Trust Company, as property trustee,
Wilmington Trust Company, as Delaware trustee, and the
administrative trustees, also referred to as the trust
agreement. The exchange capital securities and any
original capital securities that remain outstanding
after consummation of the exchange offer will vote
together as a single class for purposes of determining
whether holders of the requisite percentage in
outstanding liquidation amount have taken certain
actions or exercised certain rights under the trust
agreement. The terms of the exchange capital securities
are identical in all material respects to the terms of
the original capital securities, except that the
exchange capital securities have been registered under
the Securities Act, will not be subject to certain
restrictions on transfer applicable to the original
capital securities and will not provide for any increase
in the distribution rate.
Distributions........ You will be entitled to receive cumulative cash
distributions at the annual rate of 9.75% of the
liquidation amount of $1,000 per exchange capital
security. Distributions will accumulate from the date
the Trust issued the original capital securities and
will be paid semi-annually in arrears on May 1st and
November 1st of each year, beginning on May 1, 2000.
The record dates will be the 15th day of the month
immediately preceding the month in which the relevant
payment occurs. In the event the exchange offer is
consummated prior to the first record date, April 15,
2000, each exchange capital security will pay cumulative
distributions from and after October 28, 1999 and no
distributions will be paid on any original capital
security tendered for an
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exchange capital security. However, in the event the
exchange offer is consummated after April 15, 2000,
distributions will be paid on the original capital
securities accumulated from and after October 28, 1999
through May 1, 2000, and distributions will be paid on
the exchange capital securities from and after May 1,
2000. The amount of each distribution with respect to
the capital securities will include amounts accrued to,
but excluding the date the distribution is due. Because
of the foregoing procedures regarding distributions, the
amount of the distributions received by holders whose
original capital securities are accepted for exchange
will not be affected by the exchange.
Deferral Periods..... So long as no event of default under the exchange
debentures has occurred and is continuing, we have the
right, at one or more times, to defer interest payments
on the exchange debentures for up to 10 consecutive
semi-annual periods. All deferrals will end on an
interest payment date and will not extend beyond
November 1, 2029, the stated maturity date of the
exchange debentures.
If we defer interest payments on the exchange
debentures, the Trust will also defer distributions on
the exchange capital securities. During this deferral
period, the exchange debentures will continue to accrue
interest and the exchange capital securities will
continue to accumulate distributions. During a deferral
period, you will also accumulate additional
distributions at the annual rate of 9.75% on any
accumulated and unpaid distributions, to the extent
permitted by law. If the Trust defers your
distributions, you will still be required to accrue
interest income and include it in your gross income for
federal income tax purposes, even if you are a cash
basis taxpayer.
Ranking.............. Our obligations under the exchange debentures are
unsecured and subordinated to payment of our senior and
subordinated debt, to the extent and in the manner set
forth in the indenture, dated as of October 28, 1999, as
amended and supplemented from time to time, between us
and Wilmington Trust Company, as debenture trustee,
relating to the exchange debentures, also referred to as
the indenture, and will be effectively subordinated to
all of the existing and future liabilities and
obligations of our subsidiaries, including Astoria
Federal's deposit liabilities.
Exchange Guarantee... We are offering to exchange our guarantee, also referred
to as the exchange guarantee, of payments of cash
distributions and payments in liquidation of the Trust
or redemption of the exchange capital securities for the
existing guarantee, also referred to as the original
guarantee, in respect of the original capital
securities. We refer to the original guarantee and the
exchange guarantee collectively as the guarantees. Under
the trust agreement creating Astoria Capital Trust I,
our exchange debentures and related indenture and our
exchange guarantee, we will, on a subordinated basis,
fully, irrevocably and unconditionally guarantee:
. payment of distributions on the exchange capital
securities;
. payments on liquidation of the Trust; and
. payments on maturity or earlier redemption of the
exchange capital securities.
9
<PAGE>
If we do not make a payment on the exchange debentures,
the Trust will not have sufficient funds to make
payments on the exchange capital securities. Our
exchange guarantee does not assure the payment of
distributions when the Trust does not have sufficient
funds to pay the distributions. Our obligations under
the exchange guarantee are unsecured and subordinated to
payment of our senior and subordinated debt and will be
effectively subordinated to all of the existing and
future liabilities and obligations of our subsidiaries,
including Astoria Federal's deposit liabilities.
Distribution of Exchange
Debentures........... At any time, we will have the right, subject to receipt
of any required regulatory approval, to liquidate the
Trust and cause the exchange debentures to be
distributed to holders of exchange capital securities
and common securities in liquidation of the Trust. The
exchange debentures will have identical terms and
conditions as the exchange capital securities. We will,
for instance, have the same rights, subject to the
receipt of any required regulatory approval, to redeem
such exchange debentures as if the exchange debentures
were held by the Trust.
In the event of the involuntary or voluntary
liquidation, dissolution, winding up or termination of
the Trust in which the exchange debentures are not
distributed to you, then you, as the holders of the
exchange capital securities, will be entitled to receive
for each exchange capital security, after satisfaction
of creditors of the Trust, a liquidation amount of
$1,000 plus accumulated and unpaid distributions thereon
(including interest thereon) to the date of payment. The
Trust will be able to make this distribution in cash
only if the exchange debentures are redeemed by us.
Maturity and
Redemption........... The exchange debentures will mature on November 1, 2029,
unless redeemed prior to such date if certain conditions
are met. The Trust will redeem the exchange capital
securities when we pay the exchange debentures at
maturity or upon any earlier redemption of the exchange
debentures.
Our ability to redeem some or all of the exchange
debentures on or after November 1, 2009 is subject to
certain conditions. In addition, we may redeem the
exchange debentures at our option, in whole but not in
part, at any time prior to November 1, 2009:
. if certain tax events occur;
. if there is a change in the way the exchange
debentures would be treated for regulatory capital
purposes; or
. if there is a change in the Investment Company Act of
1940 that requires the Trust to register under that
law.
We may have to obtain regulatory approvals, including
the approval of the Office of Thrift Supervision, before
we redeem any exchange debentures prior to maturity. If
we redeem the exchange debentures, you will receive the
liquidation amount of $1,000 per exchange capital
security plus any accrued and unpaid distributions to
the date of redemption, and if such redemption occurs
prior to November 1, 2019, you will be entitled to a
premium.
10
<PAGE>
Transfer Restriction. The exchange capital securities will be issued, and may
be transferred, only in blocks having a liquidation
amount of not less than $100,000 (100 exchange capital
securities). Any such transfer of exchange capital
securities in a block having a liquidation amount of
less than $100,000 shall be deemed to be void and of no
legal effect whatsoever.
Absence of Market for the
Exchange Capital
Securities........... The exchange capital securities will be a new issue of
securities for which there is no market. Although the
initial purchaser intends to make a market in the
exchange capital securities, in a manner permitted under
applicable securities laws, Sandler O'Neill & Partners,
L.P., the initial purchaser, is not obligated to do so,
and any such market making may be discontinued at any
time without notice. Accordingly, there can be no
assurance as to the development or liquidity of any
market for the exchange capital securities. Neither we
nor the Trust intend to apply for listing of the
exchange capital securities on any securities exchange
or for quotation through the Nasdaq Stock Market.
Ratings.............. The exchange capital securities have been rated "BB" by
Standard & Poor's, "BBB-" by Duff & Phelps Credit Rating
Co., "BBB-" by Thomson Financial BankWatch and "ba2" by
Moody's Investors Service. If another rating agency were
to rate the exchange capital securities, such rating
agency may assign a rating different from the ratings
described above. A security rating is not a
recommendation to buy, sell or hold securities and may
be subject to revision or withdrawal at any time by the
assigning rating organization.
ERISA Considerations. For a discussion of certain prohibited transactions and
fiduciary duty issues pertaining to purchases by or on
behalf of an employee benefit plan, you should see
"ERISA Considerations."
Voting Rights........ As a holder of the exchange capital securities, you will
have no voting rights, except in limited circumstances.
You should read "Description of Exchange Capital
Securities -- Voting Rights; Amendment of the Trust
Agreement" for more information.
Risk Factors......... For a discussion of considerations relevant to an
investment in the capital securities or the exchange of
original capital securities for exchange capital
securities which should be carefully considered by you,
please read "Risk Factors."
11
<PAGE>
SELECTED FINANCIAL DATA
Set forth below are our selected consolidated financial and other data as
of, and for the periods ended September 30, 1999 and 1998 and as of, and for,
each of the five years ended December 31, 1998. This financial data is derived
in part from, and should be read in conjunction with, our consolidated financial
statements and related notes incorporated herein by reference. Following the
close of business on September 30, 1998, Long Island Bancorp, Inc. was merged
with and into us. The merger has been accounted for as a pooling-of-interests
and, accordingly, the financial results for all periods reported have been
restated, where applicable, to include Long Island Bancorp, Inc.
<TABLE>
<CAPTION>
At September 30, At September 31,
-------------------------- -----------------------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
----------- ----------- ----------- ----------- ----------- ----------- -----------
(In thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Selected Financial Data:
Total assets $22,863,758 $19,321,130 $20,587,741 $16,432,337 $12,586,694 $11,478,912 $9,133,804
Federal funds sold and....... 127,209 339,956 266,437 110,550 89,480 110,100 324,140
repurchase agreements
Mortgage-backed and other.... 9,554,949 6,944,102 8,196,444 4,807,305 4,194,418 3,688,223 1,222,038
securities
available-for-sale
Mortgage-backed and other.... 1,960,656 2,280,464 2,108,811 2,632,672 1,984,111 3,009,284 3,987,678
securities
held-to-maturity
Loans held-for-sale.......... 38,478 319,087 212,909 163,962 58,643 49,901 7,956
Loans receivable, net........ 9,933,228 8,388,332 8,739,319 7,782,716 5,677,490 4,037,855 3,205,580
Mortgage servicing rights,... 49,957 43,613 50,237 41,789 29,687 11,328 759
net
Deposits..................... 9,440,223 9,676,488 9,668,286 9,951,421 8,146,103 7,836,950 6,848,467
Borrowed funds............... 11,664,572 7,746,839 9,022,797 4,774,237 3,089,537 2,338,366 1,091,871
Stockholders' equity......... 1,358,743 1,541,965 1,462,384 1,445,799 1,107,923 1,116,859 1,044,284
</TABLE>
(continued on next page)
12
<PAGE>
<TABLE>
<CAPTION>
For the Nine Months Ended
September 30, For the Year Ended December 31,
----------------------- ------------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
---------- -------- ---------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
(In thousands, except per share data)
Selected Operating Data:
Interest income $1,116,555 $902,010 $1,224,448 $978,155 $842,469 $755,896 $573,483
Interest expense 710,733 568,851 775,465 603,591 501,343 433,294 280,302
---------- -------- ---------- -------- -------- -------- --------
Net interest income 405,822 333,159 448,983 374,564 341,126 322,602 293,181
Provision for loan losses 3,119 8,780 15,380 9,061 10,163 8,477 15,688
---------- -------- ---------- -------- -------- -------- --------
Net interest income after
provision for loan losses 402,703 324,379 433,603 365,503 330,963 314,125 277,493
Non-interest income 69,859 48,149 62,263 62,686 51,917 38,500 30,796
Non-interest expense:
General and
administrative 150,351 183,045 232,888 212,570 208,177 191,384 172,810
Real estate operations and
provision for real estate
losses, net (60) 36 (119) 3,072 (5,400) (1,854) 10,190
Goodwill litigation 4,041 1,120 1,665 1,101 370 -- 11
Amortization of goodwill 14,592 14,809 19,754 11,722 8,968 8,518 1,788
Acquisition costs and
restructuring charges -- -- 124,168 -- -- -- --
SAIF recapitalization
assessment -- -- -- -- 47,202 -- --
---------- -------- ---------- -------- -------- -------- --------
Total non-interest expense 168,924 199,010 378,356 228,465 259,317 198,048 184,799
---------- -------- ---------- -------- -------- -------- --------
Income before income
taxes, extraordinary item
and cumulative effect of
accounting changes 303,638 173,518 117,510 199,724 123,563 154,577 123,490
Income tax expense 127,514 72,929 61,825 81,840 54,435 65,640 48,926
---------- -------- ---------- -------- -------- -------- --------
Income before
extraordinary item and
cumulative effect of
accounting
changes 176,124 100,589 55,685 117,884 69,128 88,937 74,564
Extraordinary item, net of
tax -- -- (10,637) -- -- -- --
Cumulative effect of
accounting changes -- -- -- -- -- -- 8,648
---------- -------- ---------- -------- -------- -------- --------
Net income 176,124 100,589 45,048 117,884 69,128 88,937 83,212
Preferred dividends
declared (4,500) (4,500) 6,000 1,500 -- -- --
---------- -------- ---------- -------- -------- -------- --------
Net income available to
common stockholders $ 171,624 $ 96,089 $ 39,048 $116,384 $ 69,128 $ 88,937 $ 83,212
========== ======== ========== ======== ======== ======== ========
Basic earnings per common
share $ 3.32 $ 1.90 $ 0.77 $ 2.51 $ 1.49 $ 1.81 $ 1.62
Diluted earnings per
common share $ 3.24 $ 1.82 $ 0.74 $ 2.39 $ 1.44 $ 1.76 $ 1.61
</TABLE>
(continued on next page)
13
<PAGE>
<TABLE>
<CAPTION>
At or For the Nine Months
Ended September 30, At or For the Year Ended December 31,
----------------------- --------------------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
---------- ----------- ---------- -------- -------- -------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Selected Financial Ratios
and Other Data:
Return on average assets 1.03% 0.75% 0.25% 0.84% 0.58% 0.82% 0.95%
Return on average
stockholders' equity 16.83 8.93 3.02 9.83 6.27 8.25 9.29
Return on average tangible
stockholders' equity 20.28 10.80 3.65 11.16 6.95 9.16 9.35
Average stockholders'
equity to average assets 6.15 8.40 8.13 8.56 9.18 9.89 10.23
Average tangible
stockholders' equity
to average tangible assets 5.16 7.05 6.83 7.62 8.36 9.00 10.16
Stockholders' equity to
total assets 5.94 7.98 7.10 8.80 8.80 9.73 11.43
Core deposits to total
deposits 48.55 46.26 47.84 43.40 41.89 43.65 50.34
Net interest spread 2.17 2.21 2.20 2.38 2.56 2.70 3.10
Net interest margin 2.47 2.62 2.58 2.78 2.96 3.09 3.48
Operating income to average
assets (1) 0.29 0.25 0.28 0.34 0.37 0.34 0.33
General and administrative
expense to average assets 0.88 1.37 1.27 1.52 1.73 1.76 1.97
Efficiency ratio (2) 33.02 50.01 46.56 50.27 54.01 53.24 53.66
Average interest-earning
assets to average interest-
bearing liabilities 1.07x 1.09x 1.09x 1.09x 1.09x 1.10x 1.11x
Book value per common share $ 24.08 $27.34 $ 25.84 $25.93 $22.24 $21.23 19.02
Tangible book value per
common share 19.87 22.72 21.34 21.04 20.13 19.11 18.93
Cash dividends paid per
common share 0.72 0.60 0.80 0.56 0.43 0.20 --
Dividend payout ratio 22.22% 32.97% 108.11% 23.43% 29.86% 11.36% --
Asset Quality Ratios:
Non-performing loans to
total loans (3)(4) 0.58 0.98 1.23 1.12 1.50 2.42 3.69
Non-performing loans to
total assets (3)(4) 0.25 0.45 0.54 0.55 0.69 0.87 1.32
Non-performing assets to
total assets (4)(5) 0.28 0.53 0.58 0.70 0.87 1.15 1.69
Allowance for loan losses
to non-performing loans 129.21 88.80 66.99 82.23 55.41 47.78 39.58
Allowance for loan losses
to non-accrual loans 136.01 91.60 70.00 86.79 60.58 50.72 43.14
Allowance for loan losses
to total loans 0.74 0.87 0.83 0.93 0.83 1.15 1.46
Earnings to Fixed Charges
Ratio (6):
Including interest on
deposits 1.43x 1.31x 1.15x 1.33x 1.25x 1.36x 1.44x
Excluding interest on
deposits 1.69x 1.66x 1.31x 1.86x 1.80x 2.41x 3.76x
Capital Ratios (Astoria
Federal):
Tangible ratio 5.55% 5.84% 5.34% 6.25% 6.58% 6.97% 9.23%
Leverage ratio 5.55% 5.84% 5.34% 6.25% 6.58% 6.97% 9.23%
Risk-based capital ratio 14.50% 15.19% 13.53% 15.57% 16.45% 18.19% 23.18%
</TABLE>
(continued on next page)
14
<PAGE>
<TABLE>
<CAPTION>
For the Nine Months
Ended September 30, For the Year Ended December 31,
----------------------- -----------------------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
---------- ----------- ---------- -------- -------- -------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Other Non-GAAP Disclosures (7)
Return on average assets 0.97% 0.75% 0.79% 0.84% 0.81% 0.82% 0.95%
Cash return on average
assets (8) 1.12 1.02 1.05 1.09 1.04 1.01 1.07
Return on average
stockholders' equity 15.76 8.93 9.76 9.83 8.76 8.25 9.29
Cash return on average 18.21 12.19 12.86 12.77 11.35 10.22 10.51
stockholders' equity (8)
Return on average tangible
stockholders' equity 19.00 10.80 11.78 11.16 9.71 9.16 9.35
Cash return on average
tangible stockholders'
equity (8) 21.94 14.73 15.53 14.49 12.57 11.34 10.58
Cash general and
administrative expense to
average assets (9) 0.84 1.26 1.17 1.38 1.59 1.64 1.87
Cash efficiency ratio (2)(9) 31.25 46.03 42.92 45.70 49.41 49.80 50.82
</TABLE>
- ----------
(1) Operating income represents total non-interest income less net gains on
sales of securities and fixed assets. For the nine months ended September
30, 1999, operating income also excludes the net gain on sale and
disposition of banking and loan production offices. Operating income
totaled $49.5 million, $32.9 million, $51.2 million, $48.3 million, $44.3
million, $36.9 million and $28.9 million for the nine months ended
September 30, 1999 and 1998 and the years ended December 31, 1998, 1997,
1996, 1995 and 1994, respectively.
(2) Efficiency ratio represents general and administrative expense divided by
the sum of net interest income plus operating income.
(3) Non-performing loans consist of all non-accrual loans and all mortgage
loans delinquent 90 days or more as to their maturity date but not their
interest payments.
(4) Non-performing loans and assets exclude loans which have been restructured
and are accruing and performing in accordance with the restructured terms.
Restructured accruing loans totaled $9.9 million, $7.3 million, $6.9
million, $9.1 million, $11.8 million, $12.1 million and $12.8 million at
September 30, 1999 and 1998 and December 31, 1998, 1997, 1996, 1995 and
1994, respectively.
(5) Non-performing assets consist of all non-performing loans, real estate
owned and non-performing investments in real estate, net.
(6) For purposes of computing the ratios of earnings to fixed charges, earnings
represent income before income taxes, extraordinary item and cumulative
effect of accounting changes plus fixed charges. Fixed charges represent
total interest expense, including and excluding interest on deposits.
(7) The information presented is not in conformity with generally accepted
accounting principles, or GAAP. The following infrequently occurring items
have been excluded from the return calculations: For 1999, $11.3 million,
after-tax, for net gain on sale and disposition of banking and loan
production offices. For 1998, $89.7 million, after tax, for costs
associated with the acquisition of Long Island Bancorp Inc. and $10.6
million, after tax, of other infrequently occurring charges. For 1996,
$27.6 million, after tax, special assessment for the recapitalization of
the Savings Association Insurance Fund, or SAIF. This information is being
presented since we consider it a more accurate presentation of our actual
results of operations.
(8) Excludes non-cash charge for amortization of goodwill and amortization
relating to allocation of Employee Stock Ownership Plan, or ESOP, stock and
earned portion of the Recognition and Retention Plan, or RRP, stock and
related tax benefit.
(9) Excludes non-cash charge for amortization relating to allocation of ESOP
stock and earned portion of RRP stock.
15
<PAGE>
RECENT DEVELOPMENTS
The summary information presented below at or for each of the three months
and year ended December 31, 1999 and 1998 is taken from our incomplete unaudited
consolidated financial statements, incomplete in that it omits the statement of
cash flows and footnote disclosures. In our opinion, all adjustments
(consisting of normal recurring adjustments) necessary for a fair presentation
of the financial condition and results of operations for the unaudited periods
presented have been included. The following information is only a summary and
you should read it in conjunction with our audited December 31, 1998
consolidated financial statements and related notes incorporated by reference in
this prospectus.
<TABLE>
<CAPTION>
At or For the At or For the
Three Months Ended Year Ended
December 31, December 31,
--------------------------- ---------------------------
1999 1998 1999 1998
----------- ------------ ----------- -----------
(Dollars in thousands, except per share data)
<S> <C> <C> <C> <C>
Selected Operating Data:
Net interest income............................... $ 134,126 $ 115,824 $ 539,948 $ 448,983
Provision for loan losses......................... 1,000 6,600 4,119 15,380
Non-interest income............................... 16,837 14,114 86,696 62,263
General and administrative expense................ 44,915 49,843 195,266 232,888
Other non-interest expense........................ 9,252 129,503 27,825 145,468
Net income (loss)................................. 59,546 (55,541) 235,670 45,048
Diluted earnings (loss) per common share.......... 1.14 (1.11) 4.37 0.74
Selected Financial Data:
Total assets...................................... $22,696,536 $20,587,741 $22,696,536 $20,587,741
Mortgage-backed and other securities.............. 8,862,749 8,196,444 8,862,749 8,196,444
available-for-sale
Mortgage-backed and other securities.............. 1,899,957 2,108,811 1,899,957 2,108,811
held-to-maturity
Loans held-for-sale............................... 11,376 212,909 11,376 212,909
Loans receivable, net............................. 10,289,074 8,813,722 10,289,074 8,813,722
Mortgage servicing rights, net.................... 48,369 50,237 48,369 50,237
Deposits.......................................... 9,554,534 9,668,286 9,554,534 9,668,286
Borrowed funds.................................... 11,401,521 9,022,797 11,401,521 9,022,797
Stockholders' equity.............................. 1,196,912 1,462,384 1,196,912 1,462,384
Book value per common share....................... 22.17 25.84 22.17 25.84
Tangible book value per common share.............. 17.84 21.34 17.84 21.34
Significant Ratios:
Return on average assets.......................... 1.05% (1.13)% 1.04% 0.25%
Return on average stockholders' equity............ 18.67 (15.06) 17.31 3.02
Return on average tangible stockholders' equity... 22.71 (18.14) 20.92 3.65
Average stockholders' equity to average assets.... 5.60 7.50 5.99 8.13
Average tangible stockholders' equity to.......... 4.65 6.31 5.01 6.83
average tangible assets
Net interest spread............................... 2.07 2.15 2.14 2.20
Net interest margin............................... 2.41 2.47 2.46 2.58
General and administrative expense to............. 0.79 1.01 0.86 1.27
average assets
Efficiency ratio (1).............................. 29.76 37.14 32.21 46.56
</TABLE>
(continued on next page)
16
<PAGE>
<TABLE>
<CAPTION>
At or For the At or For the
Three Months Ended Year Ended
December 31, December 31,
--------------------------- ---------------------------
1999 1998 1999 1998
----------- ----------- ----------- ------------
<S> <C> <C> <C> <C>
Asset Quality Ratios:
Non-performing loans to total loans.................... 0.52% 1.23% 0.52% 1.23%
Non-performing loans to total assets................... 0.24 0.54 0.24 0.54
Non-performing assets to total assets.................. 0.26 0.58 0.26 0.58
Allowance for loan losses to non-performing loans...... 143.49 66.99 143.49 66.99
Allowance for loan losses to non-accrual loans......... 151.77 70.00 151.77 70.00
Allowance for loan losses to total loans............... 0.75 0.83 0.75 0.83
Other Non-GAAP Disclosures (2):
Return on average assets............................... 1.05% 0.91% 0.99% 0.79%
Cash return on average assets (3)...................... 1.18 1.11 1.13 1.05
Return on average stockholders' equity................. 18.67 12.16 16.48 9.76
Cash return on average stockholders' equity (3)........ 21.07 14.77 18.92 12.86
Return on average tangible stockholders' equity........ 22.71 14.64 19.91 11.78
Cash return on average tangible........................ 25.63 17.78 22.86 15.53
stockholders' equity (3)
Cash general and administrative expense to............. 0.76 0.94 0.82 1.17
average assets (4)
Cash efficiency ratio (1)(4)........................... 28.54 34.43 30.57 42.92
Earnings to Fixed Charges Ratio (5):
Including interest on deposits......................... 1.39x 0.73x 1.42x 1.15x
Excluding interest on deposits......................... 1.63x 0.50x 1.67x 1.31x
Capital Ratios (Astoria Federal):
Tangible ratio......................................... 5.98% 5.35% 5.98% 5.35%
Leverage ratio......................................... 5.98% 5.35% 5.98% 5.35%
Risk-based capital ratio............................... 15.33% 13.53% 15.33% 13.53%
</TABLE>
- ----------
(1) Efficiency ratio represents general and administrative expense divided
by the sum of net interest income plus operating income.
(2) The information presented is not in conformity with GAAP. Excluded
from the return calculations are a net gain on disposition of banking
and loan production offices of $11.3 million, net of tax, for the year
ended December 31, 1999 and acquisition, restructuring and other
infrequently occurring charges of $100.3 million, net of tax, for the
quarter and year ended December 31, 1998.
(3) Excludes non-cash charge for amortization of goodwill and amortization
relating to allocation of ESOP stock and earned portion of RRP stock
and related tax benefit.
(4) Excludes non-cash charge for amortization relating to allocation of
ESOP stock and earned portion of RRP stock.
(5) For purposes of computing the ratios of earnings to fixed charges,
earnings represent income before income taxes, extraordinary item and
cumulative effect of accounting changes plus fixed charges. Fixed
charges represent total interest expense, including and excluding
interest on deposits.
17
<PAGE>
We had net income of $59.5 million, or $1.14 diluted earnings per common
share, for the quarter ended December 31, 1999. For the year ended December 31,
1999, net income totaled $235.7 million or $4.37 diluted earnings per common
share. The 1999 results include a net gain on the sale and disposition of our
upstate New York banking offices and certain loan production offices, net of
taxes, of $11.3 million, or $0.21 diluted earnings per common share.
Operating earnings are net income excluding the sale and disposition of
banking and loan production offices in 1999 and the $100.3 million, after-tax,
of infrequently occurring charges in 1998 primarily associated with the
acquisition of Long Island Bancorp, Inc. Fourth quarter 1999 operating earnings
of $59.5 million, or $1.14 diluted operating earnings per common share were 33%
and 39% greater than the 1998 fourth quarter operating results of $44.8 million,
or $0.82 diluted operating earnings per common share. The 1999 fiscal year
operating results of $224.3 million, or $4.16 diluted operating earnings per
common share, were 54% and 58% greater than the 1998 fiscal year operating
results of $145.4 million, or $2.64 diluted operating earnings per common share.
Operating earnings for the quarter and year-to-date generated annualized returns
on average equity of 18.67% and 16.48%, respectively, compared to 12.16% and
9.76%, respectively, for the comparable 1998 periods and generated returns on
average assets of 1.05% and 0.99%, respectively, compared to 0.91% and 0.79%,
respectively, for the comparable 1998 periods.
1999 Fourth Quarter and Full Year Earnings Summary
Net interest income for the fourth quarter of 1999 increased 16% to $134.1
million, from $115.8 million in the 1998 fourth quarter. For the fiscal year
ended December 31, 1999, net interest income increased 20%, or $90.9 million, to
$539.9 million, from $449.0 million for 1998. The quarter and fiscal year
increases are attributable to the increase in average interest-earning assets
primarily in the mortgage loan and mortgage-backed securities portfolios,
partially offset by a lower net interest margin.
Our net interest margin was 2.41% for the quarter ended December 31, 1999,
compared to 2.39% for the previous quarter and 2.47% for the 1998 fourth
quarter. For the year ended December 31, 1999 the net interest margin was 2.46%
compared to 2.58% for the 1998 full year period.
Non-interest income, exclusive of net gains (losses) on the sale of
securities of $25,000 and $(4.3) million for the fourth quarter 1999 and 1998,
respectively, totaled $16.8 million for the fourth quarter of 1999 compared to
$18.4 million for the 1998 fourth quarter. The 1998 fourth quarter non-interest
income also includes an increase in loan servicing fees due to a positive
valuation adjustment of $4.3 million to mortgage servicing rights.
Full year non-interest income, exclusive of the net gain on the sale of
securities of $739,000 and $11.0 million for 1999 and 1998, respectively, and
the 1999 net gain on the sale and disposition of upstate New York banking and
certain loan production offices of $19.2 million, totaled $66.8 million for 1999
compared to $51.3 million for 1998.
General and administrative expense for the quarter ended December 31, 1999,
totaled $44.9 million compared to $49.8 million for the comparable 1998 period.
For the fiscal year 1999, general and administrative expense totaled $195.3
million compared to $232.9 million for the prior year. The decrease in general
and administrative expense is attributable to the full recognition of the cost
savings associated with the acquisition of Long Island Bancorp, Inc. at the end
of the third quarter of 1998 and the cost savings associated with the sale and
disposition of the five upstate New York banking offices and certain loan
production offices in 1999. The fourth quarter 1999 compensation and benefits
expense includes a reduction to pension expense of approximately $1.7 million
($1.0 million, after-tax, or $0.02 diluted earnings per common share) to adjust
the estimated expense for the full year to the actuarial calculated accrual.
Our ratio of general and administrative expense to average assets decreased
to 0.79% and 0.86%, respectively, for the quarter and fiscal year ended December
31, 1999, from 1.01% and 1.27%, respectively, for the comparable 1998 periods.
The efficiency ratios for the quarter and fiscal year, ended December 31,
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1999 were 29.76% and 32.21%, respectively, compared to 37.14% and 46.56% for the
comparable 1998 periods.
Goodwill litigation expense for the 1999 fourth quarter totaled $2.4
million compared to $545,000 for the comparable 1998 quarter. For the full
fiscal year, goodwill litigation expense totaled $6.4 million compared to $1.7
million for the comparable 1998 period.
Balance Sheet Summary
Total assets at December 31, 1999 totaled $22.70 billion compared to $22.86
billion at the end of the previous quarter. For the fiscal year, assets
increased $2.11 billion, or 10%, from $20.59 billion reported at fiscal year end
1998. The increase for the full fiscal year was due primarily to the increases
in the mortgage loan and mortgage-backed securities portfolios which were funded
primarily through medium and long-term borrowings.
Mortgage lending activity for the quarter and fiscal year ended December
31, 1999 remained concentrated in one-to-four family mortgage loans. Gross
mortgage loan originations totaled $651.1 million and $1.33 billion for the
fourth quarter of 1999 and 1998, respectively, and $3.76 billion and $5.19
billion for the year ended December 31, 1999 and 1998, respectively.
Loans receivable, net, increased $279.3 million, or 3% in the 1999 fourth
quarter and $1.47 billion, or 17% in the fiscal year 1999.
While the loan portfolio continued to increase, non-performing loans
declined to $53.4 million, or 0.24% of total assets at December 31, 1999, from
$57.5 million, or 0.25% of total assets at September 30, 1999, and ratio of
allowances for loan losses to non-performing loans at December 31, 1999
increased to 143.49% from 129.21% at September 30, 1999.
Mortgage-backed securities and other securities totaled $10.76 billion at
December 31, 1999, a decrease of $752.9 million from $11.52 billion at September
30, 1999.
At December 31, 1999, deposits totaled $9.55 billion, compared to $9.67
billion at December 31 1998. The decrease is primarily due to the sale of the
upstate New York banking office deposits totaling $156.4 million in the 1999
third quarter. Deposits increased in the 1999 fourth quarter by $114.3 million.
Our core deposits, which include passbook, money market and checking accounts,
increased to 48.4% of total deposits at December 31, 1999, from 47.8% at
December 31, 1998. Borrowings at December 31, 1999 totaled $11.40 billion
compared to $11.66 billion at the end of the previous quarter.
Stockholders' equity at December 31, 1999 was $1.20 billion, or 5.27% of
total assets, compared to $1.36 billion, or 5.94% of total assets at September
30, 1999. The change in stockholders' equity in the fourth quarter was primarily
attributable to the positive effect of net income and the amortization relating
to stock plans and related tax benefit, offset by the repurchase of common
shares during the fourth quarter, the increase in the unrealized loss on
securities available-for-sale, net of taxes, and dividends paid. The 1999 fourth
quarter increase from $222.3 million to $344.2 million in the unrealized loss on
securities available-for-sale, net of taxes, component of stockholders' equity,
is a reflection of the effect of increasing market interest rates since
September 30, 1999 on the available-for-sale securities portfolio market value
and is not the result of any sale transactions from that portfolio. Astoria
Federal continues to maintain capital ratios in excess of regulatory
requirements. At December 31, 1999, core, tangible and risk-based capital ratios
of Astoria Federal were 5.98%, 5.98% and 15.33%, respectively.
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RISK FACTORS
Prospective purchasers of the exchange capital securities should carefully
review the information contained elsewhere or incorporated by reference, in this
prospectus and should particularly consider the following factors, which do not
necessarily appear in the order of importance. Investors should consider all of
these factors to be important. Because holders of the exchange capital
securities may receive exchange debentures in exchange therefor upon liquidation
of the Trust, prospective purchasers of the exchange capital securities are also
making an investment decision with regard to the exchange debentures and should
carefully review all the information regarding the exchange debentures contained
in this prospectus.
RISKS RELATED TO YOUR INVESTMENT IN THE EXCHANGE CAPITAL SECURITIES
Astoria Financial cannot make payments under the exchange guarantee or the
exchange debentures if Astoria Financial defaults on its obligations that are
more senior.
Our obligations under the exchange guarantee and the exchange debentures
are unsecured and rank
. junior to all of our other borrowings, except those borrowings that by
their terms are equal or junior;
. junior to all of our subsidiaries' liabilities, including Astoria
Federal's deposit accounts; and
. senior to our common stock and preferred stock.
This means that we cannot pay under the exchange guarantee or the exchange
debentures if we default on payments of any of our other borrowings, unless, by
their terms, those borrowings are equal or junior to the exchange guarantee. In
addition, if the maturity of the exchange debentures is accelerated, we cannot
pay under the exchange guarantee or the exchange debentures until all of our
more senior borrowings are paid in full. Finally, if we liquidate, go bankrupt
or dissolve, we would be able to pay under the exchange guarantee and the
exchange debentures only after we have paid all of our liabilities that are
senior to the exchange guarantee.
If we default on our obligations to pay principal, premium or interest on
the exchange debentures, the Trust will not have sufficient funds to make
distribution, redemption or liquidation payments on the exchange capital
securities. As a result, you will not be able to rely upon our exchange
guarantee for payment of these amounts. Instead, you may seek legal redress
against us directly to collect payments owed to you or rely on the property
trustee to enforce the rights of the Trust under the exchange debentures against
us.
The exchange capital securities, exchange guarantee, the exchange
debentures and the indenture do not limit our ability to incur additional debt,
including debt that is senior in priority of payment.
The ability of the Trust to make payments due on the exchange capital
securities is solely dependent on us making payments on the exchange debentures
as and when required.
For more information on payments under the exchange guarantee and the
exchange debentures, you should refer to "Description of Exchange Guarantee --
Status of the Exchange Guarantee" and "Description of Exchange Debentures --
Subordination."
Banking laws and regulations limit Astoria Financial's access to funds, which
may prevent Astoria Financial from making payments under the exchange debentures
and the exchange guarantee.
We are a unitary savings and loan association holding company regulated by
the Office of Thrift Supervision, or OTS, and almost all of our operating assets
are owned by Astoria Federal. We rely primarily on dividends from Astoria
Federal to meet our obligations for payment of corporate expenses, to pay cash
dividends to our common and preferred stockholders and to engage in share
repurchase programs, and will rely
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on such dividends to pay principal, premium and interest on the exchange
debentures and make payments under the exchange guarantee. The OTS limits all
capital distributions by Astoria Federal directly or indirectly to us, including
dividend payments. As the subsidiary of a savings and loan holding company,
Astoria Federal currently must file a notice with the OTS for each capital
distribution. However, if the total amount of all capital distributions
(including each proposed capital distribution) for the applicable calendar year
exceeds net income for that year to date plus the retained net income for the
preceding two years, then Astoria Federal must file an application to receive
the approval of the OTS for the proposed capital distribution.
Under the prompt corrective action provisions of the Federal Deposit
Insurance Act, Astoria Federal is prohibited from making capital distributions,
including the payment of dividends, if, after making any capital distribution,
Astoria Federal would become undercapitalized as defined under the Federal
Deposit Insurance Act. Based on Astoria Federal's current financial condition,
we do not expect that this provision will have any impact on our ability to
obtain dividends from Astoria Federal. Payment of dividends by Astoria Federal
also may be restricted at any time at the discretion of the appropriate
regulator if it deems the payment to constitute unsafe or unsound banking
practice. Currently, approximately $191.6 million is available for the payment
of dividends to us without further approval from the OTS.
We cannot assure you that Astoria Federal will be able to pay dividends at
past levels, or at all, in the future. See the section entitled "Regulation and
Supervision" in our Annual Report on Form 10-K for the year ended December 31,
1998, which is incorporated in this prospectus by reference.
In addition to regulatory restrictions on the payment of dividends, Astoria
Federal is subject to certain restrictions imposed by federal law on any
extensions of credit it makes to its affiliates and on investments in stock or
other securities of its affiliates. We are considered an affiliate of Astoria
Federal. These restrictions prevent affiliates of Astoria Federal, including us,
from borrowing from Astoria Federal, unless various types of collateral secure
the loans. Federal law limits the aggregate amount of loans to and investments
in any single affiliate to 10% of the Astoria Federal's capital stock and
surplus and also limits the aggregate amount of loans to and investments in all
affiliates to 20% of the Astoria Federal's capital stock and surplus. As of
September 30, 1999, approximately $135.2 million of credit was available to us
under this limitation.
If we do not receive sufficient cash dividends or borrowings from Astoria
Federal, then it is unlikely that we will have sufficient funds to make payments
on the exchange debentures and the exchange guarantee, thereby leaving
insufficient funds for the Trust to make payments to you on the exchange capital
securities.
Also, as a holding company, our right to receive any distribution of assets
of any subsidiary, upon such subsidiary's liquidation or reorganization or
otherwise (and thus your right to benefit indirectly from such distribution), is
subject to the prior claims of creditors of that subsidiary, except to the
extent we are also recognized as a creditor of that subsidiary. For example, if
Astoria Federal, our only direct operating subsidiary, is liquidated or
reorganized, depositors of Astoria Federal would have the right to receive
distributions from Astoria Federal before us unless we were considered a
creditor of Astoria Federal. At September 30, 1999, Astoria Federal had total
liabilities, including deposits, of $21.54 billion.
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Astoria Financial can defer interest payments on the exchange debentures,
causing your payments under the exchange capital securities to stop, which will
have tax consequences to you and may affect the market price of the exchange
capital securities.
We have the right, at one or more times, unless an event of default exists
under the exchange debentures, to defer interest payments on the exchange
debentures for up to 10 consecutive semi-annual periods, but not beyond November
1, 2029. If we defer interest payments, the Trust will defer paying
distributions to you on your exchange capital securities during the deferral
period. Additionally, during this period, any unpaid distributions on the
exchange capital securities will accumulate additional distributions at the rate
of 9.75% per year, compounded semi-annually, to the extent permitted by law.
During this time, we will be prohibited from declaring or paying cash dividends
on our common stock and preferred stock and making payments on certain of our
debt securities. For more information, please refer to "Description of Exchange
Capital Securities -- Distributions."
When any deferral period ends and we pay all interest then accrued and
unpaid on the exchange debentures, we may elect to begin a new deferral period.
There is no limitation on the number of times that we may elect to begin a
deferral period. See "Description of Exchange Capital Securities--
Distributions" and "Description of Exchange Debentures -- Option to Extend
Interest Payment Date."
If we exercise our right to defer payments of interest on the exchange
debentures, you will be required to accrue income (as original issue discount)
in respect of the deferred stated interest allocable to your exchange capital
securities for federal income tax purposes, which will be allocated but not
distributed to you. As a result, you will be required to recognize income for
federal income tax purposes before you receive any cash. Furthermore, if you
dispose of your exchange capital securities prior to the record date for the
distribution payment, you will not receive, from the Trust, the cash related to
this interest income.
As a result of our right to defer interest payments, the market price of
the exchange capital securities, which represent preferred beneficial interests
in the Trust, may be more volatile than the market prices of other securities
that are not subject to such deferral options. We do not currently intend to
exercise our right to defer interest payments on the exchange debentures.
However, if we exercise this right in the future, the market price of the
exchange capital securities will probably be affected. The exchange capital
securities may trade at a price that does not fully reflect the value of accrued
but unpaid interest on the exchange debentures. If you sell your exchange
capital securities during a deferral period, you may not receive the same return
on your investment as someone else who continues to hold the exchange capital
securities.
Distribution of exchange debentures may have a possible adverse effect on
trading price.
We have the right to dissolve the Trust at any time if such dissolution and
any distribution of the exchange debentures would not result in a taxable event
to the holders of the exchange capital securities. If we dissolve the Trust,
the Trust will be liquidated by distribution of the exchange debentures to
holders of the exchange capital securities and the common securities.
Under current federal income tax laws, a distribution of exchange
debentures to you on the dissolution of the Trust would not be a taxable event
to you. Nevertheless, if the Trust is classified for federal income tax
purposes as an association taxable as a corporation at the time it is dissolved,
the distribution of exchange debentures to you would be a taxable event. In
addition, if there is a change in law, a distribution of exchange debentures to
you on the dissolution of the Trust could also be a taxable event.
Your investment in the exchange capital securities may decrease in value if
the exchange debentures are distributed to you in liquidation of the Trust. We
cannot predict the liquidity of the market or market prices for the exchange
debentures that may be distributed. Accordingly, the exchange debentures that
you receive upon a distribution, or the exchange capital securities you hold
pending such distribution, may trade at a discount to the price that you paid to
purchase the exchange capital securities.
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Because you may receive the exchange debentures, you must also make an
investment decision with regard to the exchange debentures. You should
carefully review all of the information regarding the exchange debentures
contained in this prospectus.
You will have limited voting rights.
As a holder of exchange capital securities, you will have limited voting
rights. You can vote only to modify certain terms of the exchange capital
securities or on the removal of the property and Delaware trustees of the Trust
upon a limited number of events. We, along with the property trustee and the
administrative trustees, may amend the trust agreement without your consent even
if these actions adversely affect your interests, to ensure that the Trust:
. will continue to be classified as a grantor trust for federal income
tax purposes; and
. will not be required to register as an "investment company" under the
Investment Company Act of 1940.
You will not have any voting rights regarding Astoria Financial or the
administrative trustees or with respect to any matters submitted to a vote of
our common stockholders. See "Description of Exchange Capital Securities --
Voting Rights; Amendment of the Trust Agreement" and "-- Removal of Issuer
Trustees" for more information on your limited voting rights.
The limited covenants relating to the exchange capital securities and the
exchange debentures do not protect you.
The covenants in the governing documents relating to the exchange capital
securities and the exchange debentures are limited. As a result, the governing
documents do not protect you in the event of an adverse change in our financial
condition or results of operations. In addition, the governing documents do not
limit our ability, or the ability of our subsidiaries, to incur additional debt.
You should not consider the terms of the governing documents to be a significant
factor in evaluating whether we will be able to comply with our obligations
under the exchange debentures or the guarantee.
Trading characteristics of the exchange capital securities may create adverse
tax consequences for you.
The exchange capital securities may trade at a price that does not reflect
the value of the accrued but unpaid interest on the underlying exchange
debentures. If you dispose of your exchange capital securities between the
record date for payments on the exchange capital securities, you may have
adverse tax consequences. Under these circumstances, you will be required to
include accrued but unpaid interest on the exchange debentures allocable to the
exchange capital securities through the date of disposition in your income. If
interest on the exchange debentures is included in income under the original
issue discount provisions, you would add this amount to your adjusted tax basis
in your share of the underlying exchange debentures deemed disposed. If your
selling price is less than your adjusted tax basis, which will include all
accrued but unpaid original issue discount interest included in your income, you
could recognize a capital loss which cannot be applied to offset ordinary income
for federal income tax purposes, subject to exceptions. See "Certain Federal
Income Tax Consequences -- Interest Income and Original Issue Discount" and "--
Sales or Redemptions of Capital Securities" for more information on possible
adverse tax consequences to you.
Your failure to exchange original capital securities may adversely affect your
ability to sell such securities.
The original capital securities have not been registered under the
Securities Act or any state securities laws and therefore may not be offered,
sold or otherwise transferred except in compliance with the registration
requirements of the Securities Act and any other applicable securities laws, or
pursuant to an exemption from the applicable securities laws or in a transaction
not subject to such laws, and in each case in compliance with certain other
conditions and restrictions. Original capital securities which remain
outstanding after consummation of the exchange offer will continue to bear a
legend reflecting such restrictions on transfer. In
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<PAGE>
addition, upon consummation of the exchange offer, holders of original capital
securities which remain outstanding will not be entitled to any rights to have
such original capital securities registered under the Securities Act or to any
similar rights under the registration rights agreement, subject to certain
limited exceptions. We and the Trust do not intend to register under the
Securities Act any original capital securities which remain outstanding after
consummation of the exchange offer, subject to such limited exceptions, if
applicable. To the extent that original capital securities are tendered and
accepted in the exchange offer, your ability to sell untendered original capital
securities could be adversely affected.
The exchange capital securities and any original capital securities which
remain outstanding after consummation of the exchange offer will vote together
as a single class for purposes of determining whether holders of the requisite
percentage in outstanding liquidation amount thereof have taken certain actions
or exercised certain rights under the trust agreement. See "Description of
Exchange Capital Securities -- Voting Rights; Amendment of the Trust Agreement."
Absence of public market; restrictions on resale.
The original capital securities were issued to, and we believe such
securities are currently owned by, a relatively small number of beneficial
owners. The original capital securities have not been registered under the
Securities Act and will be subject to restrictions on transferability if they
are not exchanged for the exchange capital securities. Although the exchange
capital securities may be resold or otherwise transferred by the holders, who
are not affiliates of Astoria Financial or the Trust, without compliance with
the registration requirements under the Securities Act, they will constitute a
new issue of securities with no established trading market and will be
transferable only in blocks having a liquidation amount of not less than
$100,000 (100 exchange capital securities).
If a public trading market develops, future trading prices of the exchange
capital securities will depend on many factors, including, among others,
prevailing interest rates, our operating results and the market for similar
securities. The initial purchaser has informed the Trust and us that it intends
to make a market in the capital securities. However, the initial purchaser is
not obligated to do so and any such activity may be terminated at any time
without notice to the holders of the capital securities. In addition, any
market making activity will be subject to the limits of the Securities Act and
may be limited during the pendency of the exchange offer. Accordingly, we
cannot assure you that an active public or other market will develop for the
exchange capital securities, or as to the liquidity of or the trading market for
the exchange capital securities. If an active public market does not develop,
the market price and liquidity of the exchange capital securities may be
adversely affected. In addition, neither we nor the Trust intend to apply for
listing of the exchange capital securities on any securities exchange or for
quotation through the Nasdaq Stock Market, Inc. See "Plan of Distribution."
Notwithstanding the registration of the exchange capital securities in the
exchange offer, holders who are "affiliates" (as defined under Rule 405 of the
Securities Act) of us or the Trust may publicly offer for sale or resell the
exchange capital securities only in compliance with the provisions of Rule 144
under the Securities Act.
Each broker-dealer that receives exchange capital securities for its own
account in exchange for original capital securities, where such original capital
securities were acquired by such broker-dealer as a result of market- making
activities or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such exchange capital securities.
See "Plan of Distribution."
We are not obligated to notify you of defects or irregularities in the exchange
offer procedures.
Subject to conditions set forth under "The Exchange Offer -- Conditions to
the Exchange Offer," issuance of the exchange capital securities in exchange for
original capital securities under the exchange offer will be made only after a
timely receipt by the Trust of:
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. a book-entry confirmation evidencing the tender of such original
capital securities through ATOP; or
. certificates representing such original capital securities, a properly
completed and duly executed letter of transmittal, with any required
signature guarantees, and all other required documents.
Therefore, holders of the original capital securities desiring to tender such
original capital securities should allow sufficient time to ensure timely
delivery. See "The Exchange Offer -- Acceptance for Exchange and Issuance of
Exchange Capital Securities" and "-- Procedures for Tendering Original Capital
Securities." Neither we nor the Trust is under any duty to give notification of
defects or irregularities with respect to the tenders of original capital
securities for exchange.
RISKS RELATING TO ASTORIA FINANCIAL AND ASTORIA FEDERAL
Rising interest rates may reduce our net income.
Astoria Federal's primary source of income is its net interest income,
which is the difference between the interest income earned on its interest
earning assets and the interest expense incurred on its interest bearing
liabilities. At September 30, 1999, our one year interest rate sensitivity gap
(the difference between our interest rate sensitive assets maturing or repricing
within one year and our interest rate sensitive liabilities maturing or
repricing within one year, expressed as a percentage of total assets) was 2.29%.
Included in this calculation were $1.01 billion of securities and $3.13 billion
of borrowings, categorized according to their contractual maturity, which are
callable within one year. If these securities and borrowings had been
categorized according to their call dates, our one year interest rate
sensitivity gap would have been negative. Although our recent experience has
been that the initial, and in some cases, subsequent, call dates on these
securities and borrowings have passed without the securities or borrowings being
called, there is no guarantee that this will continue, particularly in a rising
interest rate environment. In a rising interest rate environment, an
institution with a negative gap would generally be expected, absent the effects
of other factors, to experience a greater increase in its cost of liabilities
relative to its yield on assets, and thus decrease an institution's net interest
income.
Changes in interest rates may reduce stockholders' equity and the value of our
future cash flows.
At September 30, 1999, $9.55 billion of our securities were classified as
available-for-sale under generally accepted accounting principles. The
estimated market value of our available-for-sale securities portfolio may
increase or decrease depending on changes in interest rates. Generally, as
interest rates increase, the estimated market value of our fixed rate securities
portfolio will decrease because the average yield on the portfolio, relatively,
will be less than the yields on securities available in the market at that time.
Under generally accepted accounting principles, we are required to increase or
decrease stockholder's equity by the amount of the change in estimated market
value of our available-for-sale securities portfolio, net of the related tax
benefit, under the category of accumulated other comprehensive income.
Therefore, a decline in the estimated market value of this portfolio will result
in a decline in reported stockholder's equity, as well as book value per common
share and tangible book value per common share. This decrease will occur even
though the securities are not sold. If these securities are never sold, the
decrease will be recovered over the life of the securities. At September 30,
1999, the decline in stockholder's equity due to a decline in the estimated
market value of the available-for-sale securities portfolio was $222.3 million
compared to $14.6 million at December 31, 1998.
If our callable borrowings are called prior to their contractual maturity
during a period of rising interest rates, we could be required either to renew
the borrowings at a potentially higher rate of interest, which would negatively
impact net interest income, or sell a portion of our available-for-sale
securities to fund the repayment. If we sell the securities, any decline in
estimated market value would be realized, resulting in a
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loss upon such sale.
As a federal savings and loan association, Astoria Federal is required to
monitor changes in the net present value of the expected future cash flows of
our assets and liabilities, which is referred to as net portfolio value, or NPV.
In addition, we monitor our NPV ratio, which is our NPV divided by the estimated
market value of total assets. The NPV ratio can be viewed as a corollary to our
capital ratios. To monitor our overall sensitivity to changes in interest rates,
we simulate the effect of instantaneous changes in interest rates of up to 200
basis points on our assets and liabilities. As of September 30, 1999, such an
increase in interest rates of 200 basis points would have reduced our NPV by
approximately 39% resulting in an NPV ratio of 6.30%. There can be no assurance
that future changes in our mix of assets and liabilities will not result in more
extensive declines in our NPV and NPV ratio.
Low demand for mortgage loans may lower our profitability.
One-to-four family residential mortgage loans and securities backed by one-
to-four family residential mortgage loans represent a significant portion of our
assets as of September 30, 1999, and are our primary source of interest income.
If customer demand for residential mortgage loans decreases in our market area,
our loan originations will likely decrease, and if customer demand decreases
nationwide, the availability of mortgage-backed securities with cash flow and
credit risk characteristics that satisfy our criteria may be diminished. Our
profits may then decrease because our alternative investments earn less revenue
for us than residential mortgage loans and mortgage-backed securities. Customer
demand for residential mortgage loans may be reduced by a weaker economy, an
increase in unemployment, a decrease in real estate values or an increase in
interest rates.
Strong competition within our market area may reduce our customer base.
Competition in the banking and financial services industry is intense. We
have competed for customers by offering excellent service and competitive rates
on our loans and deposit products. We compete with commercial banks, savings
institutions, mortgage banking firms, credit unions, finance companies, mutual
funds, insurance companies, and brokerage and investment banking firms. Some of
these competitors have greater resources than we do and may offer services that
we do not provide. For example, we do not provide a wide array of insurance
products, trust or investment services, nor do we provide banking services
through home computers or other technologically advanced services. Customers
who seek "one stop shopping" may be drawn to these institutions. Our
profitability depends upon our continued ability to successfully compete in our
market area.
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USE OF PROCEEDS
Neither we nor the Trust will receive any cash proceeds from the issuance
of the exchange capital securities and the exchange guarantee. In consideration
for issuing the exchange capital securities in exchange for original capital
securities as described in this prospectus, the Trust will receive original
capital securities in like liquidation amount. The original capital securities
surrendered in exchange for the exchange capital securities will be retired and
canceled.
All of the proceeds from the sale by the Trust of its original capital
securities and common securities were invested by the Trust in the original
junior subordinated debentures. The net proceeds we received from the sale of
the $125,000,000 aggregate principal amount of our junior subordinated
debentures, Series A, also referred to as the original junior subordinated
debentures, were approximately $122.8 million, net of estimated commissions and
other estimated offering expenses. We used approximately $31.3 millions of the
net proceeds to increase Astoria Federal's capital level, and have and will use
the remaining net proceeds for general corporate purposes, including the
repurchase of our common stock. Initially, we invested the net proceeds in
short-term liquid investments, including U.S. Government and agency securities
and repurchase agreements backed by U.S. Government and agency securities.
ACCOUNTING TREATMENT
For financial reporting purposes, the Trust is treated as our subsidiary,
and, accordingly, the accounts of the Trust are included in our consolidated
financial statements. The capital securities are presented as a separate line
item in our consolidated statements of financial condition and appropriate
disclosures about the capital securities, the guarantees and the junior
subordinated debentures are included in the notes to consolidated financial
statements. For financial reporting purposes, we will record distributions
payable on the capital securities as a non-interest expense in the consolidated
statements of income.
Future reports we file under the Exchange Act will include a footnote to
the consolidated financial statements stating that:
. the Trust is wholly-owned;
. the sole assets of the Trust are the junior subordinated debentures
(specifying the principal amount, interest rate and maturity date of
such junior subordinated debentures); and
. our obligations under the trust agreement, the junior subordinated
debentures and related indenture and the original guarantee and the
exchange guarantee, collectively referred to as the guarantees, in the
aggregate, constitute a full and unconditional guarantee by us of the
obligations of the Trust under the capital securities.
We expect that the Trust will not be required to provide separate reports
under the Exchange Act.
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CAPITALIZATION
The following table sets forth our consolidated capitalization at September
30, 1999, and as adjusted to give effect to the issuance of the original capital
securities offered by the Trust, and the receipt and application by us of the
net proceeds from the corresponding sale of the original junior subordinated
debentures to the Trust. Consummation of the exchange offer will have no effect
on such capitalization. You should read this table in conjunction with our
consolidated financial statements and related notes, which are incorporated by
reference into this prospectus.
<TABLE>
<CAPTION>
September 30, 1999
----------------------------
Actual As Adjusted
------------- -------------
<S> <C> <C>
(In thousands)
Long-term borrowings............................................................... $11,264,485 $11,264,485
----------- -----------
Guaranteed preferred beneficial.................................................... $ -- $ 125,000
interest in junior subordinated debentures(1)...................................... ------------ -----------
Stockholders' equity:
Preferred stock, $1.00 par value; 5,000,000 shares authorized:
Series A (325,000 shares authorized and -0- shares issued and outstanding)...... -- --
Series B (2,000,000 shares authorized, issued and outstanding).................. 2,000 2,000
Common stock, $.01 par value; (200,000,000 shares authorized, 55,498,296........... 555 555
shares issued and 54,340,443 shares outstanding)
Additional paid in capital......................................................... 797,541 797,541
Retained earnings.................................................................. 864,741 864,741
Treasury stock (1,157,853 shares, at cost)......................................... (50,086) (50,086)
Accumulated other comprehensive income (2)......................................... (222,258) (222,258)
Unallocated common stock held by ESOPs............................................. (33,645) (33,645)
Unearned common stock held by RRP.................................................. (105) (105)
----------- -----------
Total stockholders' equity......................................................... 1,358,743 1,358,743
----------- -----------
Total long-term borrowings and stockholders' equity................................ 12,623,228 12,748,228
=========== ===========
Capital ratios (Astoria Federal) (3):
Tangible........................................................................... 5.55% 5.68%
Leverage........................................................................... 5.55% 5.68%
Risk-based......................................................................... 14.50% 14.82%
</TABLE>
_________________
(1) As described in this prospectus, the sole assets of the Trust, which is our
subsidiary, are the junior subordinated debentures, which mature on
November 1, 2029, unless redeemed prior to such date in accordance with
their terms. We own all of the common securities issued by the Trust.
(2) Includes only net unrealized loss on securities available-for-sale.
(3) We contributed $31.3 million of proceeds from the sale of the original
junior subordinated debentures to Astoria Federal.
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ASTORIA FINANCIAL CORPORATION
General
We are headquartered in Lake Success, New York and, through our subsidiary
Astoria Federal, operate eighty-seven retail banking offices in New York State:
eighty-four on Long Island, including Brooklyn, Queens, Nassau and Suffolk
counties, and three in Westchester County. Established in 1888, Astoria Federal
provides retail banking and mortgage and consumer lending to approximately
700,000 customers. In addition, Astoria Federal originates mortgage loans
through its banking and loan production offices in the New York Metropolitan
area and through an extensive broker network in thirteen states: New York, New
Jersey, Connecticut, Pennsylvania, Massachusetts, Delaware, Maryland, Ohio,
Virginia, North Carolina, South Carolina, Georgia and Florida. With $22.85
billion in assets at September 30, 1999, Astoria Federal is the largest thrift
in New York State and sixth largest in the United States.
Our primary business is the operation of our wholly owned subsidiary,
Astoria Federal. In addition to directing, planning and coordinating the
business activities of Astoria Federal, we invest primarily in U.S. Government
and federal agency securities, mortgage-backed securities and other securities.
We have acquired, and may continue to acquire or organize, either directly or
indirectly through Astoria Federal, other operating subsidiaries, including
other financial institutions.
Astoria Federal's principal business is attracting retail deposits from the
general public and investing those deposits, together with funds generated from
operations, principal repayments and borrowings, primarily in one-to-four family
residential mortgage loans and mortgage-backed securities and, to a lesser
extent, multi-family residential mortgage loans, commercial real estate loans,
commercial loans and consumer loans. In addition, Astoria Federal invests in
U.S. Government and federal agency securities and in other investments permitted
by federal laws and regulations. Astoria Federal's revenues are derived
principally from interest on its mortgage loan and mortgage-backed securities
portfolios and interest and dividends on its other securities portfolio.
Astoria Federal's cost of funds consists of interest expense on deposits and
borrowings.
At September 30, 1999, we had total assets of $22.86 billion, consisting
primarily of $9.93 billion in total loans, net, and $10.02 billion in mortgage-
backed securities. Within our $9.93 billion loan portfolio, one-to-four family
residential mortgage loans comprised $8.80 billion of our assets. As of
September 30, 1999, on a consolidated basis, we had total liabilities of $21.51
billion, consisting primarily of deposits of $9.44 billion, 48.6% of which are
core deposits (savings, money market, money manager and NOW accounts) and $11.66
billion of borrowed funds, and total stockholders' equity of $1.36 billion.
A key element in our growth strategy over the past twenty-five years has
been to become a leading financial institution in terms of deposit market share
in our major markets. To accomplish this goal, we remain alert for
opportunities to enhance and expand our banking franchise through acquisitions.
Since 1973 we have successfully acquired and integrated nine institutions with
86 banking offices, transforming ourselves into a leading competitor in the Long
Island banking market. Our current acquisition strategy is focused on further
complementing our existing Long Island franchise and driving additional
efficiencies that will enable us to enhance stockholder value while achieving
long-term benefits for our customers and the communities we serve.
In April of 1998, we announced our agreement to acquire Long Island
Bancorp, Inc., the parent company of The Long Island Savings Bank, FSB. With
$6.58 billion in assets and $3.58 billion in deposits, the acquisition added 35
banking offices to our Long Island franchise. Following on the heels of our
successful 1997 acquisition of The Greater New York Savings Bank, which gave us
an entry into the Brooklyn market, the Long Island Bancorp acquisition
complemented and strengthened our presence in Queens, Nassau and Suffolk
counties. After the consolidation of five banking offices and the opening of a
new office in Brooklyn in February 1999, we operate a total of 87 full service
banking offices of which 84 are located on Long Island. The Long Island
network, with deposits averaging $108 million per banking office at September
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30, 1999, and core deposits representing 48.6% of total deposits, anchors our
position as a low cost provider of quality products and services. The
importance of the Long Island banking market is underscored by its size: the
population of seven million makes Long Island the equivalent of the twelfth
largest state in the United States. Each of the four counties on Long Island is
among the 25 largest in the nation, with two of the four having median household
incomes higher than the U.S. average of $36,656. Nassau and Suffolk counties
combined rank among the most prosperous, with combined effective annual buying
income of $51.40 billion.
REGULATION AND SUPERVISION
We are subject to extensive federal and, to a lesser extent, state
regulation. We are subject to examination and supervision by the OTS, as our
chartering agency, and by the Federal Deposit Insurance Corporation, or the
FDIC, as the deposit insurer. We, as a unitary savings and loan holding company,
are regulated, examined and supervised by the OTS. We are required to file
certain reports with, and otherwise comply with the rules and regulations of the
OTS and of the Commission under the federal securities laws. The OTS has primary
enforcement responsibility over federally chartered savings associations and has
substantial discretion to impose enforcement action on an institution that fails
to comply with its regulatory requirements, particularly with respect to its
capital requirements. In addition, the FDIC has the authority to recommend to
the Director of the OTS that enforcement action be taken with respect to a
particular federally chartered savings association and, if action is not taken
by the Director, the FDIC has authority to take such action under certain
circumstances.
This regulation and supervision establish a comprehensive framework of
activities in which we can engage and is intended primarily for the protection
of the deposit insurance fund and depositors. The regulatory structure also
gives the regulatory authorities extensive discretion in connection with their
supervisory and enforcement activities and examination policies, including
policies with respect to the classification of assets and the establishment of
adequate loan loss reserves for regulatory purposes. Regulations affecting banks
and financial services companies undergo continuous modification and the
ultimate effect of such changes cannot be predicted. Regulations and laws may
be modified at any time, and new legislation may be enacted that affects us, our
bank and non-bank subsidiaries. Any change in such regulation, whether by the
OTS, the FDIC or Congress could have a material adverse impact on our
operations.
Almost all of our assets consist of our investment in Astoria Federal, our
principal subsidiary. Thus, our ability to pay principal of, and premium and
interest on, the junior subordinated debentures depends almost entirely on cash
dividends we receive from Astoria Federal.
The OTS limits all capital distributions by Astoria Federal directly or
indirectly to us, including dividend payments. As the subsidiary of a savings
and loan holding company, Astoria Federal currently must file a notice with the
OTS for each capital distribution. However, if the total amount of all capital
distributions (including each proposed capital distribution) for the applicable
calendar year exceeds net income for that year to date plus the retained net
income for the preceding two years, then Astoria Federal must file an
application to receive the approval of the OTS for the proposed capital
distribution. Currently, approximately $191.6 million is available for the
payment of dividends to us without further approval from the OTS.
In addition to the OTS limits, Astoria Federal may not pay dividends to us
if, after paying those dividends, it would fail to meet the required minimum
levels under risk-based capital guidelines and the minimum leverage and tangible
capital ratio requirements. Under the Federal Deposit Insurance Act, an insured
depositary institution such as Astoria Federal is prohibited from making capital
distributions, including the payment of dividends, if, after making such
distribution, the institution would become "undercapitalized" (as such term is
used in the FDIA). Based on Astoria Federal's current financial condition, we
do not expect that this provision will have any impact on our ability to obtain
dividends from Astoria Federal. Payment of dividends by Astoria Federal also
may be restricted at any time at the discretion of the appropriate regulator if
30
<PAGE>
it deems the payment to constitute an unsafe and unsound banking practice. We
cannot assure you that Astoria Federal will be able to pay dividends at past
levels, or at all, in the future.
If we do not receive sufficient cash dividends from Astoria Federal, it is
unlikely that we will have sufficient funds to make payments on the junior
subordinated debentures or that the Trust will be able to make the related
payments on the capital securities. See "Description of Exchange Capital
Securities" and "Description of Exchange Debentures."
Other statutes and regulations that affect us and Astoria Federal are
summarized in "Item 1. Business -- Regulation and Supervision" of our Annual
Report on Form 10-K for the fiscal year ended December 31, 1998, which is
incorporated into this prospectus by reference.
ASTORIA CAPITAL TRUST I
The Trust is a statutory business trust created under Delaware law upon the
filing of a certificate of trust with the Delaware Secretary of State. The
Trust exists for the exclusive purposes of:
. issuing and selling the capital securities and the common securities;
. using the proceeds from the sale of the capital securities and the
common securities to acquire the junior subordinated debentures issued
by us; and
. engaging in only those other activities necessary, advisable or
incidental thereto, including the exchange offer.
The junior subordinated debentures are the sole assets of the Trust, and,
accordingly, payments under the junior subordinated debentures will be the sole
revenues of the Trust. We own all of the common securities of the Trust, which
have an aggregate liquidation amount equal to at least 3% of the total capital
of the Trust. The common securities rank pari passu, and payments will be made
thereon pro rata, with the capital securities, except that upon the occurrence
and continuance of an event of default under the trust agreement resulting from
an event of default under the junior subordinated debentures, our rights as
holder of the common securities to payments in respect of distributions and
payments upon liquidation, redemption or otherwise will be subordinated to the
rights of the holders of the capital securities. See "Description of Exchange
Capital Securities -- Subordination of Common Securities." The Trust has a term
of approximately 35 years, but may dissolve earlier as provided in the trust
agreement. The Trust's business and affairs are conducted by Wilmington Trust
Company, as property trustee and as the Delaware trustee, and three
administrative trustees, collectively referred to as the issuer trustees.
Wilmington Trust Company also acts as trustee under the guarantees and the
indenture. See "Description of Exchange Guarantee" and "Description of Exchange
Debentures." The holder of the common securities of the Trust or, if an event of
default under the trust agreement 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 exchange capital securities have the right to
vote to appoint, remove or replace the administrative trustees; such voting
rights will be vested exclusively in the holder of the common securities. The
duties and obligations of each issuer trustee are governed by the trust
agreement. As issuer of the exchange debentures, we will pay all fees, expenses,
debts and obligations (other than the payment of principal of, and premium and
interest on, the capital securities) related to the Trust and the offering of
the exchange capital securities and pay, directly or indirectly, all ongoing
costs, expenses and liabilities of the Trust. The principal executive office of
the Trust is c/o Astoria Financial Corporation, One Astoria Federal Plaza, Lake
Success, New York 11042, and its telephone number is (516) 327-3000.
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<PAGE>
THE EXCHANGE OFFER
Purpose of the Exchange Offer
In connection with the sale of the original capital securities, we and the
Trust entered into the registration rights agreement with the initial purchaser,
under which we and the Trust agreed to file and to use our best efforts to cause
to become effective with the Commission a registration statement with respect to
the exchange of the original capital securities for exchange capital securities
with terms identical in all material respects to the terms of the original
capital securities. A copy of the registration rights agreement has been filed
as an exhibit to the registration statement of which this prospectus is a part.
The exchange offer is being made to satisfy our and the Trust's contractual
obligations under the registration rights agreement. The form and terms of the
exchange capital securities are the same as the form and terms of the original
capital securities except that the exchange capital securities have been
registered under the Securities Act and will not provide for any increase in the
distribution rate and certain restrictions on transfer applicable to the
original capital securities. In that regard, the original capital securities
provide, among other things, that, if a registration statement relating to the
exchange offer has not been filed with the Commission on or prior to the 150/th/
day after the issue date, the distribution rate borne by the original capital
securities will increase by 25 basis points per annum until the exchange offer
is consummated. Upon consummation of the exchange offer, holders of original
capital securities will not be entitled to any increase in the distribution rate
on the original capital securities or any further registration rights under the
registration rights agreement, except under limited circumstances. See "Risk
Factors."
The exchange offer is not being made to, nor will the Trust accept tenders
for exchange from, holders of original capital securities in any jurisdiction in
which the exchange offer or its acceptance would not be in compliance with the
securities or blue sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder" with respect to
the exchange offer means any person in whose name the original capital
securities are registered on the books of the Trust or any other person who has
obtained a properly completed bond power from the registered holder, or any
person whose original capital securities are held of record by DTC who desires
to deliver such original capital securities by book-entry transfer at DTC.
Under the exchange offer, we will exchange as soon as practicable after the
date of this prospectus the original guarantee for the exchange guarantee and
the original junior subordinated debentures, in an amount corresponding to the
original capital securities accepted for exchange, for a like aggregate
principal amount of the exchange debentures. The exchange guarantee and exchange
debentures have been registered under the Securities Act.
Terms of the Exchange Offer
The Trust hereby offers, upon the terms and subject to the conditions set
forth in this prospectus and in the accompanying letter of transmittal, to
exchange up to $125,000,000 aggregate liquidation amount of exchange capital
securities for a like aggregate liquidation amount of original capital
securities properly tendered on or prior to the expiration date and not properly
withdrawn in accordance with the procedures described below. The Trust will
issue, promptly after the expiration date, an aggregate liquidation amount of up
to $125,000,000 of exchange capital securities in exchange for a like principal
amount of outstanding original capital securities tendered and accepted in
connection with the exchange offer. Holders may tender their original capital
securities in whole or in part in a liquidation amount of not less than $100,000
(100 capital securities) or any integral multiple of $1,000 liquidation amount
(one capital security) in excess of $100,000.
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<PAGE>
The exchange offer is not conditioned upon any minimum liquidation amount
of original capital securities being tendered. As of the date of this
prospectus, $125,000,000 aggregate liquidation amount of the original capital
securities is outstanding.
Holders of original capital securities do not have any appraisal or
dissenters' rights in connection with the exchange offer. Original capital
securities which are not tendered for or are tendered but not accepted in
connection with the exchange offer will remain outstanding and be entitled to
the benefits of the trust agreement, but will not be entitled to any further
registration rights under the registration rights agreement, except under
limited circumstances. See "Risk Factors" and "Description of Original Capital
Securities."
If any tendered original capital securities are not accepted for exchange
because of an invalid tender, the occurrence of certain other events set forth
in this prospectus or otherwise, certificates for any such unaccepted original
capital securities will be returned, without expense, to the tendering holder
promptly after the expiration date.
Holders who tender original capital securities in connection with the
exchange offer will not be required to pay brokerage commissions or fees or,
subject to the instructions in the letter of transmittal, transfer taxes with
respect to the exchange of original capital securities in connection with the
exchange offer. We will pay all charges and expenses, other than certain
applicable taxes described below, in connection with the exchange offer. See "-
- - Fees and Expenses."
Neither we, our Board of Directors nor any issuer trustee of the Trust
makes any recommendation to you as to whether to tender or refrain from
tendering all or any portion of your original capital securities pursuant to the
exchange offer. In addition, no one has been authorized to make any such
recommendation. You must make your own decisions whether to tender pursuant to
the exchange offer and, if so, the aggregate amount of original capital
securities to tender based your own financial positions and requirements.
Expiration Date; Extensions; Amendments
The term "expiration date" means 5:00 p.m., New York City time, on
, 2000, unless we or the Trust extends the exchange offer, in which case the
term "expiration date" shall mean the latest date and time to which the exchange
offer is extended.
We and the Trust expressly reserve the right in our sole and absolute
discretion, subject to applicable law, at any time and from time to time:
. to delay the acceptance of the original capital securities for
exchange;
. to terminate the exchange offer, whether or not any original capital
securities have theretofore been accepted for exchange, if the Trust
determines, in its sole and absolute discretion, that any of the
events or conditions referred to under "-- Conditions to the Exchange
Offer" have occurred or exist or have not been satisfied;
. to extend the expiration date of the exchange offer and retain all
original capital securities tendered under the exchange offer,
subject, however, to the right of holders of original capital
securities to withdraw their tendered original capital securities as
described under "--Withdrawal Rights;" and
. to waive any condition or otherwise amend the terms of the exchange
offer in any respect.
If the exchange offer is amended in a manner determined by us and the Trust to
constitute a material change, or if we and the Trust waive a material condition
of the exchange offer, we and the Trust will promptly
33
<PAGE>
disclose such amendment by means of a prospectus supplement that will be
distributed to the holders of the original capital securities, and we and the
Trust will extend the exchange offer to the extent required by Rule 14e-1 under
the Exchange Act.
Any such delay in acceptance, extension, termination or amendment will be
followed promptly by oral or written notice to the exchange agent and by making
a public announcement, and such announcement in the case of an extension will be
made no later than 9:00 a.m., New York City time, on the next business day after
the previously scheduled expiration date. Without limiting the manner in which
we and the Trust may choose to make any public announcement and subject to
applicable law, we and the Trust shall have no obligation to publish, advertise
or otherwise communicate any such public announcement other than by issuing a
release to an appropriate news agency.
Acceptance for Exchange and Issuance of Exchange Capital Securities
Upon the terms and subject to the conditions of the exchange offer, the
Trust will exchange, and will issue to the exchange agent, exchange capital
securities for original capital securities validly tendered and not withdrawn
promptly after the expiration date.
In all cases, delivery of exchange capital securities in exchange for
original capital securities tendered and accepted for exchange under the
exchange offer will be made only after timely receipt by the exchange agent of
(i) the book-entry confirmation described below under "-- Procedures for
Tendering Original Capital Securities -- Book-Entry Transfer" or (ii)
certificates representing such original capital securities, the letter of
transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees, and any other documents required by the
letter of transmittal.
Subject to the terms and conditions of the exchange offer, the Trust will
be deemed to have accepted for exchange, and thereby exchanged, original capital
securities validly tendered and not withdrawn as, if and when the Trust gives
oral or written notice to the exchange agent of the Trust's acceptance of such
original capital securities for exchange under the exchange offer. The exchange
agent will act as agent for the Trust for the purpose of receiving tenders of
book-entry confirmations or certificates representing original capital
securities, letters of transmittal and related documents, and as agent for
tendering holders for the purpose of receiving book-entry confirmations or
certificates representing original capital securities, letters of transmittal
and related documents and transmitting exchange capital securities to validly
tendering holders. Such exchange will be made promptly after the expiration
date. If for any reason whatsoever, acceptance for exchange or the exchange of
any original capital securities tendered pursuant to the exchange offer is
delayed, whether before or after the Trust's acceptance for exchange of original
capital securities, or the Trust extends the exchange offer or is unable to
accept for exchange or exchange original capital securities tendered under the
exchange offer, then, without prejudice to the Trust's rights set forth in this
prospectus, the exchange agent may, nevertheless, on behalf of the Trust and
subject to Rule l4e-1 (c) under the Exchange Act, retain tendered original
capital securities and such original capital securities may not be withdrawn
except to the extent tendering holders are entitled to withdrawal rights as
described under "-- Withdrawal Rights."
In accordance with the letter of transmittal, a holder of original capital
securities will warrant and agree that it has full power and authority to
tender, exchange, sell, assign and transfer the original capital securities,
that the Trust will acquire good, marketable and unencumbered title to the
tendered original capital securities, free and clear of all liens, restrictions,
charges and encumbrances, and the original capital securities tendered for
exchange are not subject to any adverse claims or proxies. Such holder also will
warrant and agree that it will, upon request, execute and deliver any additional
documents deemed by the Trust or the exchange agent to be necessary or desirable
to complete the exchange, sale, assignment, and transfer of the original capital
securities tendered under the exchange offer. Tendering holders of original
capital securities that use ATOP will, by so doing, acknowledge that they are
bound by the terms of the letter of transmittal.
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<PAGE>
Procedures for Tendering Original Capital Securities
Valid Tender. Except as set forth in this prospectus, in order for
original capital securities to be validly tendered under the exchange offer, a
properly completed and duly executed letter of transmittal (or facsimile
thereof), with any required signature guarantees and any other required
documents, must be received by the exchange agent at its address set forth under
"-- Exchange Agent," and, in addition, one of the following:
. tendered original capital securities must be received by the exchange
agent;
. such original capital securities must be tendered pursuant to the
procedures for book-entry transfer set forth in this prospectus and a
book-entry confirmation must be received by the exchange agent, in
each case on or prior to the expiration date; or
. the guaranteed delivery procedures set forth in this prospectus must
be complied with.
If less than all of the original capital securities are tendered, a
tendering holder should fill in the amount of original capital securities being
tendered in the appropriate box on the letter of transmittal or so indicate in
an agent's message in lieu of the letter of transmittal. The entire amount of
original capital securities delivered to the exchange agent will be deemed to
have been tendered unless otherwise indicated.
The method of delivery of the book-entry confirmations or certificates, the
letter of transmittal and all other required documents is at the option and sole
risk of the tendering holder, and delivery will be deemed made only when
actually received by the exchange agent. If delivery is by mail, we recommend
using registered mail, return receipt requested, properly insured, or an
overnight delivery service. In all cases, sufficient time should be allowed to
ensure timely delivery.
Book-Entry Transfer. For purposes of the exchange offer, the exchange agent
will establish an account with respect to the original capital securities at DTC
as soon as practicable. Any tendering financial institution that is a
participant in DTC's book-entry transfer facility system must make a book-entry
delivery of the original capital securities by causing DTC to transfer such
original capital securities into the exchange agent's account at DTC in
accordance with DTC's ATOP procedures for transfers. Such holder of original
capital securities using ATOP should transmit its acceptance to DTC on or prior
to the expiration date, or comply with the guaranteed delivery procedures set
forth below. DTC will verify such acceptance, execute a book-entry transfer of
the tendered original capital securities into the exchange agent's account at
DTC and then send to the exchange agent confirmation of such book-entry
transfer, including an agent's message confirming that DTC has received an
express acknowledgment from such holder that such holder has received and agrees
to be bound by the letter of transmittal and that we and the Trust may enforce
the letter of transmittal against such holder, book-entry confirmation.
A beneficial owner of original capital securities that are held by or
registered in the name of a broker, dealer, commercial bank, trust company or
other nominee or custodian is urged to contact such entity promptly if such
beneficial owner wishes to participate in the exchange offer.
Certificates. If the tender is not made through ATOP, certificates
representing original capital securities, as well as the letter of transmittal,
or facsimile thereof, properly completed and duly executed, with any required
signature guarantees, and any other required documents required by the letter of
transmittal, must be received by the exchange agent at its address set forth
under "-- Exchange Agent" on or prior to the expiration date in order for such
tender to be effective, or the guaranteed delivery procedure set forth herein
must be complied with.
If less than all of the original capital securities are tendered, a
tendering holder should fill in the amount of original capital securities being
tendered in the appropriate box on the letter of transmittal. The
35
<PAGE>
entire amount of original capital securities delivered to the exchange agent
will be deemed to have been tendered unless otherwise indicated.
Signature Guarantees. Certificates for the original capital securities
need not be endorsed and signature guarantees on the letter of transmittal are
unnecessary unless:
. a certificate for the original capital securities is registered in a
name other than that of the person surrendering the certificate; or
. the holder completes the box entitled "Special Issuance Instructions"
or "Special Delivery Instructions" in the letter of transmittal.
In the case of the above conditions, such certificates for original capital
securities must be duly endorsed or accompanied by a properly executed bond
power, with the endorsement or signature on the bond power and on the letter of
transmittal guaranteed by a firm or other entity identified in Rule 17Ad-15
under the Exchange Act as an "eligible guarantor institution," including (as
such terms are defined therein): (a) a bank; (b) a broker, dealer, municipal
securities broker or dealer or government securities broker or dealer; (c) a
credit union; (d) a national securities exchange, registered securities
association or clearing agency; or (e) a savings association that is a
participant in a Securities Transfer Association, an eligible institution,
unless surrendered on behalf of such eligible institution. See Instruction 1 to
the letter of transmittal.
Delivery. The method of delivery of the book-entry confirmation or
certificates representing tendered original capital securities, the letter of
transmittal, and all other required documents is at the option and sole risk of
the tendering holder, and delivery will be deemed made only when actually
received by the exchange agent. If delivery is by mail, registered mail, return
receipt requested, properly insured, or an overnight delivery service is
recommended. In all cases, sufficient time should be allowed to ensure timely
delivery.
Notwithstanding any other provision hereof, the delivery of exchange
capital securities in exchange for original capital securities tendered and
accepted for exchange pursuant to the exchange offer will in all cases be made
only after timely receipt by the exchange agent of:
. a book-entry confirmation with respect to such original capital
securities; or
. certificates representing original capital securities and a properly
completed and duly executed letter of transmittal, or facsimile
thereof, together with any required signature guarantees and any other
documents required by the letter of transmittal.
Accordingly, the delivery of exchange capital securities might not be made to
all tendering holders at the same time, and will depend upon when book-entry
confirmations with respect to original capital securities or certificates
representing original capital securities and other required documents are
received by the exchange agent.
Delivery of documents to DTC in accordance with DTC's procedures does not
constitute delivery to the exchange agent.
Guaranteed Delivery. If a holder desires to tender original capital
securities under the exchange offer and the certificates for such original
capital securities are not immediately available or time will not permit all
required documents to reach the exchange agent on or prior to the expiration
date, or the procedure for book-entry transfer cannot be completed on a timely
basis, such original capital securities may nevertheless be tendered, provided
that all of the following guaranteed delivery procedures are complied with:
. such tenders are made by or through an eligible institution;
36
<PAGE>
. properly completed and duly executed notice to the exchange agent
guaranteeing delivery to the exchange agent of either certificates
representing original capital securities or a book-entry confirmation
in compliance with the requirements set forth in this prospectus, the
notice of guaranteed delivery, substantially in the form accompanying
the letter of transmittal, is received by the exchange agent, as
provided herein, on or prior to expiration date; and
. a book-entry confirmation or the certificates representing all
tendered original capital securities, in proper form for transfer,
together with a properly completed and duly executed letter of
transmittal, or facsimile thereof, with any required signature
guarantees and any other documents required by the letter of
transmittal, are, in any case, received by the exchange agent within
three Nasdaq National Market trading days after the date of execution
of such notice of guaranteed delivery.
The notice of guaranteed delivery may be delivered by hand, or transmitted
by facsimile or mail to the exchange agent and must include a guarantee by an
eligible institution in the form set forth in such notice.
The Trust's acceptance for exchange of original capital securities tendered
in compliance with any of the procedures described above will constitute a
binding agreement between the tendering holder and the Trust upon the terms and
subject to the conditions of the exchange offer.
Determination of Validity. We and the Trust will determine all questions
as to the form of documents, validity, eligibility, including time of receipt,
and acceptance for exchange of any tendered original capital securities, in our
sole discretion, and the determination shall be final and binding on all
parties. We and the Trust reserve the absolute right, in our sole and absolute
discretion, to reject any and all tenders determined by us not to be in proper
form or the acceptance of which, or exchange for, may, in the opinion of counsel
to us and the Trust, be unlawful. We and the Trust also reserve the absolute
right, subject to applicable law, to waive any of the conditions of the exchange
offer as set forth under "-- Conditions to the Exchange Offer" or any condition
or irregularity in any tender of original capital securities of any particular
holder whether or not similar conditions or irregularities are waived in the
case of other holders.
The Trust's and our interpretation of the terms and conditions of the
exchange offer, including the letter of transmittal and the instructions
thereto, will be final and binding. No tender of original capital securities
will be deemed to have been validly made until all irregularities with respect
to such tender have been cured or waived. Neither us, the Trust, any affiliates
or assigns of us or the Trust, the exchange agent or any other person shall be
under any duty to give any notification of any irregularities in tenders or
incur any liability for failure to give any such notification.
If any letter of transmittal, endorsement, bond power, power of attorney,
or any other document required by the letter of transmittal is signed by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and unless waived by us and the
Trust, proper evidence satisfactory to us and the Trust, in our sole discretion,
of such person's authority to so act must be submitted.
Resales of Exchange Capital Securities
The Trust is making the exchange offer for the exchange capital securities
in reliance on the position of the staff of the Commission as set forth in
certain interpretive letters addressed to third parties in other transactions.
However, neither we nor the Trust sought our own interpretive letter and there
can be no assurance that the staff of the Commission would make a similar
determination with respect to the exchange offer as it has in such interpretive
letters to third parties. Based on these interpretations by the staff of the
Commission, and subject to the two immediately following sentences, we and the
Trust believe that exchange capital securities issued under this exchange offer
in exchange for original capital securities may be offered for
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resale, resold and otherwise transferred by a holder, other than a holder who is
a broker-dealer, without further compliance with the registration and prospectus
delivery requirements of the Securities Act, provided that such exchange capital
securities are acquired in the ordinary course of such holder's business and
that such holder is not participating, and has no arrangement or understanding
with any person to participate, in a distribution, within the meaning of the
Securities Act, of such exchange capital securities. However, any holder of
original capital securities who is an affiliate of us or the Trust or who
intends to participate in the exchange offer for the purpose of distributing
exchange capital securities, or any broker-dealer who purchased original capital
securities from the Trust to resell pursuant to Rule 144A or any other available
exemption under the Securities Act:
. will not be able to rely on the interpretations of the staff of the
Division of Corporation Finance of the Commission set forth in the
above-mentioned interpretive letters;
. will not be permitted or entitled to tender such original capital
securities in the exchange offer; and
. must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with any sale or other transfer of
such original capital securities or, if distributed, junior
subordinated debentures, unless such sale is made in reliance on an
exemption from such requirements.
In addition, as described below, if any broker-dealer holds original capital
securities acquired for its own account as a result of market-making or other
trading activities and exchanges such original capital securities for exchange
capital securities, then such broker-dealer must deliver a prospectus meeting
the requirements of the Securities Act in connection with any resales of such
exchange capital securities.
Each holder of original capital securities who wishes to exchange original
capital securities for exchange capital securities in the exchange offer will be
required to represent that:
. it is not an affiliate of us or the Trust;
. any exchange capital securities to be received by it are being
acquired in the ordinary course of its business;
. it has no arrangement or understanding with any person to participate
in a distribution, within the meaning of the Securities Act, of such
exchange capital securities; and
. if such holder is not a broker-dealer, such holder is not engaged in,
and does not intend to engage in, a distribution, within the meaning
of the Securities Act, of such exchange capital securities.
We and the Trust may require such holder, as a condition to such holder's
eligibility to participate in the exchange offer, to furnish to us and the Trust
(or an agent thereof) in writing information as to the number of "beneficial
owners," within the meaning of Rule 13d-3 under the Exchange Act, on behalf of
whom such holder holds the capital securities to be exchanged in the exchange
offer. Each broker-dealer that receives exchange capital securities for its own
account as a result of the exchange offer must acknowledge that it acquired the
original capital securities for its own account as the result of market-making
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activities or other trading activities and must agree that it will deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such exchange capital securities. The letter of transmittal states
that by so acknowledging and by delivering a prospectus, a broker-dealer will
not be deemed to admit that it is an underwriter within the meaning of the
Securities Act. Based on the position taken by the staff of the Commission in
the interpretive letters referred to above, we and the Trust believe that
participating broker-dealers who acquired original capital securities for their
own accounts as a result of market-making activities or other trading activities
may fulfill their prospectus delivery requirements with respect to the exchange
capital securities received upon exchange of such original capital securities,
other than original capital securities which represent an unsold allotment from
the initial sale of the original capital securities, with a prospectus meeting
the requirements of the Securities Act, which may be the prospectus prepared for
an exchange offer so long as it contains a description of the plan of
distribution with respect to the resale of such exchange capital securities.
Accordingly, this prospectus, as it may be amended or supplemented from time to
time, may be used by a participating broker-dealer during the period referred to
below in connection with resales of exchange capital securities received in
exchange for original capital securities where such original capital securities
were acquired by such participating broker-dealer for its own account as a
result of market-making or other trading activities. Subject to certain
provisions set forth in the registration rights agreement, we and the Trust have
agreed that this prospectus, as it may be amended or supplemented from time to
time, may be used by a participating broker-dealer in connection with resales of
such exchange capital securities for a period ending 90 days after the
expiration date, subject to extension under certain limited circumstances
described below, or, if earlier, when all such exchange capital securities have
been disposed of by such participating broker-dealer. See "Plan of
Distribution." However, a participating broker-dealer who intends to use this
prospectus in connection with the resale of exchange capital securities received
in exchange for original capital securities pursuant to the exchange offer must
notify us or the Trust, or cause us or the Trust to be notified, on or prior to
the expiration date, that it is a participating broker-dealer. Such notice may
be given in the space provided for that purpose in the letter of transmittal or
may be delivered to the exchange agent at the address set forth herein under "--
Exchange Agent." Any participating broker-dealer who is an affiliate of us or
the Trust may not rely on such interpretive letters and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction.
Each participating broker-dealer who surrenders original capital securities
under the exchange offer will be deemed to have agreed, by execution of the
letter of transmittal, that upon receipt of notice from us or the Trust of the
occurrence of any event or the discovery of:
. any fact which makes any statement contained or incorporated by
reference in this prospectus untrue in any material respect;
. any fact which causes this prospectus to omit to state a material fact
necessary in order to make the statements contained or incorporated by
reference herein, in light of the circumstances under which they were
made, not misleading; or
. the occurrence of certain other events specified in the registration
rights agreement,
such participating broker-dealer will suspend the sale of exchange capital
securities, or the exchange guarantee or the exchange debentures, as applicable,
pursuant to this prospectus until we or the Trust has amended or supplemented
this prospectus to correct such misstatement or omission and has furnished
copies of the amended and supplemented prospectus to such participating broker-
dealer, or we or the Trust has given notice that the sale of the exchange
capital securities, or the exchange guarantee or the exchange debentures, as
applicable, may be resumed, as the case may be.
If we or the Trust gives such notice to suspend the sale of the exchange
capital securities, or the exchange guarantee or the exchange debentures, as
applicable, the 90-day period referred to above shall be extended during which
participating broker-dealers are entitled to use this prospectus in connection
with the resale of exchange capital securities by the number of days during the
period from and including the date of the giving of such notice to and including
the date when participating broker-dealers shall have received copies of the
amended or supplemented prospectus necessary to permit resales of the exchange
capital securities or to and including the date on which we or the Trust has
given notice that the sale of exchange capital securities, or the exchange
guarantee or the exchange debentures, as applicable, may be resumed, as the case
may be.
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Withdrawal Rights
Except as otherwise provided in this prospectus, tenders of original
capital securities may be withdrawn at any time on or prior to the expiration
date.
In order for a withdrawal to be effective, a written or facsimile
transmission of such notice of withdrawal must be timely received by the
exchange agent at the address set forth under "-- Exchange Agent" on or prior to
the expiration date. Any such notice of withdrawal must specify the name of the
person who tendered the original capital securities to be withdrawn, the
aggregate principal amount of original capital securities to be withdrawn, and,
if certificates for such original capital securities have been tendered, the
name of the registered holder of the original capital securities as set forth on
such certificates if different from that of the person who tendered such
original capital securities. If certificates representing original capital
securities have been delivered or otherwise identified to the exchange agent,
then prior to the physical release of such certificates, the tendering holder
must submit the serial numbers shown on the particular certificates to be
withdrawn and the signature on the notice of withdrawal must be guaranteed by an
eligible institution, except in the case of original capital securities tendered
for the account of an eligible institution. If original capital securities have
been tendered in accordance with the procedures for book-entry transfer set
forth in "-- Procedures for Tendering Original Capital Securities -- Book-Entry
Transfer," the notice of withdrawal must specify the name and number of the
account at DTC to be credited with the withdrawal of original capital
securities. Withdrawals of tenders of original capital securities may not be
rescinded. Original capital securities properly withdrawn will not be deemed
validly tendered for purposes of the exchange offer, but may be retendered at
any subsequent time on or prior to the expiration date by following any of the
procedures described above under "-- Procedures for Tendering Original Capital
Securities."
All questions as to the validity, form and eligibility, including time of
receipt, of such withdrawal notices will be determined by us and the Trust, in
our sole discretion, whose determination shall be final and binding on all
parties. Neither we, the Trust, any affiliates or assigns of us or the Trust,
the exchange agent nor any other person shall be under any duty to give any
notification of any irregularities in any notice of withdrawal or incur any
liability for failure to give any such notification. Any original capital
securities which have been tendered but which are withdrawn will be returned to
the holder thereof promptly after withdrawal.
Distributions on Exchange Capital Securities
Holders of exchange capital securities whose original capital securities
are accepted for exchange will be entitled to receive cumulative cash
distributions arising from the payment of interest on the exchange debentures at
the annual rate of 9.75% of the liquidation amount of $1,000 per exchange
capital security, accumulating from October 28, 1999, and will be payable semi-
annually in arrears on May 1st and November 1st of each year, beginning on
May 1, 2000. The record dates will be the 15th day of the month immediately
preceding the month in which the relevant payment occurs. In the event the
exchange offer is consummated prior to the first record date, April 15, 2000,
each exchange capital security will pay cumulative distributions from and after
October 28, 1999 and no distributions will be paid on any original capital
security tendered for an exchange capital security. However, in the event the
exchange offer is consummated after April 15, 2000, distributions will be paid
on the original capital securities accumulated from and after October 28, 1999
through May 1, 2000, and distributions will be paid on the exchange capital
securities from and after May 1, 2000. The amount of each distribution with
respect to the capital securities will include amounts accrued to, but excluding
the date the distribution is due. Because of the foregoing procedures regarding
distributions, the amount of the distributions received by holders whose
original capital securities are accepted for exchange will not be affected by
the exchange.
Conditions to the Exchange Offer
Notwithstanding any other provisions of the exchange offer, or any
extension of the exchange offer, we and the Trust will not be required to accept
for exchange, or to exchange, any original capital securities for
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any exchange capital securities, and, as described below, may terminate the
exchange offer (whether or not any original capital securities have theretofore
been accepted for exchange) or may waive any conditions to or amend the exchange
offer, if any of the following conditions have occurred or exists or have not
been satisfied:
. there shall occur a change in the current interpretation by the staff
of the Commission which permits the exchange capital securities issued
pursuant to the exchange offer in exchange for original capital
securities to be offered for resale, resold and otherwise transferred
by holders, other than broker-dealers and any such holder which is an
affiliate of us or the Trust within the meaning of Rule 405 under the
Securities Act, without compliance with the registration and
prospectus delivery provisions of the Securities Act, provided that
such exchange capital securities are acquired in the ordinary course
of such holders' business and such holders have no arrangement or
understanding with any person to participate in the distribution of
such exchange capital securities;
. any law, statute, rule or regulation shall have been adopted or
enacted which, in the judgment of us or the Trust, would reasonably be
expected to impair its ability to proceed with the exchange offer;
. a stop order shall have been issued by the Commission or any state
securities authority suspending the effectiveness of the registration
statement, or proceedings shall have been initiated or, to the
knowledge of us or the Trust, threatened for that purpose, or any
governmental approval has not been obtained, which approval we or the
Trust shall, in its sole discretion, deem necessary for the
consummation of the exchange offer as contemplated hereby; or
. we determine in good faith that there is a reasonable likelihood that,
or a material uncertainty exists as to whether, consummation of the
exchange offer would result in an adverse tax consequence to the Trust
or us.
Exchange Agent
Wilmington Trust Company, as property trustee of the Trust, has been
appointed as Exchange Agent for the exchange offer. Delivery of the letters of
transmittal and any other required documents, questions, requests for
assistance, and requests for additional copies of this prospectus or of the
letter of transmittal should be directed to the exchange agent as follows:
By Hand, Overnight Delivery, Registered or Certified Mail:
Wilmington Trust Company, as Exchange Agent
Rodney Square North
1100 North Market Street
Wilmington, DE 19890
Attention: Corporate Trust Administration -
Astoria Capital Trust I Exchange Offer
Confirm by Telephone: (302) 651-1000
Facsimile Transmission: (302) 651-8882
(Eligible Institutions Only)
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Delivery to another address other than the above address or facsimile
number will not constitute a valid delivery.
Fees and Expenses
We have agreed to pay the exchange agent reasonable and customary fees for
its services and will reimburse it for its reasonable out-of-pocket expenses in
connection with the exchange offering. We will also pay brokerage houses and
other custodians, nominees and fiduciaries the reasonable out-of-pocket expenses
incurred by them in forwarding copies of this prospectus and related documents
to the beneficial owners of original capital securities, and in handling or
tendering for their customers.
Holders who tender their original capital securities for exchange will not
be obligated to pay any transfer taxes in connection therewith. If, however,
exchange capital securities are to be delivered to, or are to be issued in the
name of, any person other than the registered holder of the original capital
securities tendered, or if a transfer tax is imposed for any reason other than
the exchange of original capital securities in connection with the exchange
offer, then the amount of any such transfer taxes, whether imposed on the
registered holder or any other persons, will be payable by the tendering holder.
Neither we nor the Trust will make any payment to brokers, dealers or
other nominees soliciting acceptances of the exchange offer.
DESCRIPTION OF EXCHANGE CAPITAL SECURITIES
Under the terms of the trust agreement, the issuer trustees on behalf of
the trust will issue the exchange capital securities. The exchange capital
securities will represent beneficial interests in the trust and their holders
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." The trust agreement will be qualified under the Trust
Indenture Act of 1939, as amended, referred to as the Trust Indenture Act. This
summary describes the material provisions of the exchange capital securities.
It is not complete and is subject to, and qualified by, the trust agreement,
including the definitions used in the trust agreement, and the Trust Indenture
Act. We have incorporated the definitions used in the trust agreement in this
prospectus. You can receive a complete copy of the form of trust agreement by
requesting a copy from Astoria Financial.
General
The exchange capital securities will constitute beneficial interests in the
Trust. As a holder of exchange capital securities, you will be entitled to a
preference over the common securities in certain circumstances with respect to
distributions and amounts payable on redemption of the exchange capital
securities or liquidation of the Trust, as described under "-- Subordination of
Common Securities." The trust agreement will not be qualified under the Trust
Indenture Act, except upon effectiveness of the exchange offer registration
statement or the shelf registration statement. By its terms, however, the trust
agreement will incorporate certain provisions of the Trust Indenture Act, and,
upon consummation of the exchange offer or effectiveness of the shelf
registration statement, the trust agreement will be subject to and governed by
the Trust Indenture Act.
The exchange capital securities have been rated "BB" by Standard & Poor's,
"BBB-" by Duff & Phelps Credit Rating Co., "BBB-" by Thomson Financial BankWatch
and "ba2" by Moody's Investors Service. See "Ratings."
The exchange capital securities will be limited to $125 million aggregate
liquidation amount at any one time outstanding. The exchange capital securities
will rank equal to, and payments will be made on a pro
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rata basis with, the common securities, except as described under "--
Subordination of Common Securities." The property trustee will have legal title
to the exchange debentures and will hold them in trust for the benefit of you
and the other holders of the exchange capital securities. Our exchange guarantee
for the benefit of the holders of the exchange capital securities will be a
guarantee on a subordinated basis with respect to the exchange capital
securities, but will not guarantee payment of distributions or amounts payable
on redemption of the exchange capital securities or liquidation of the Trust
when the Trust does not have funds legally available for such payments. You
should read "Description of Exchange Guarantee" for more information about our
guarantee.
Distributions
Distributions on the exchange capital securities will be cumulative, and
will accumulate from the date that the original capital securities are first
issued. Distributions will be payable at the annual rate of 9.75% of the
liquidation amount, payable semi-annually in arrears on the distribution dates,
which are May 1st and November 1st of each year, commencing May 1, 2000, to
the holders of the exchange capital securities on the relevant record dates.
The record dates will be the 15th day of the month immediately preceding the
month in which the relevant distribution date occurs. In the event the exchange
offer is consummated prior to the first record date, April 15, 2000, each
exchange capital security will pay cumulative distributions from and after
October 28, 1999 and no distributions will be paid on any original capital
security tendered for an exchange capital security. However, in the event the
exchange offer is consummated after April 15, 2000, distributions will be paid
on the original capital securities accumulated from and after October 28, 1999
through May 1, 2000, and distributions will be paid on the exchange capital
securities from and after May 1, 2000. The amount of distributions will be paid
on each distribution with respect to the capital securities will include amounts
accrued to, but excluding the date the distribution is due. Because of the
foregoing procedures regarding distributions, the amount of the distributions
received by holders whose original capital securities are accepted for exchange
will not be affected by the exchange. The amount of distributions payable for
any distribution period will be based on a 360-day year of twelve 30-day months.
If any distribution date would otherwise fall on a day that is not a
business day, the required payment will be made on the next business day without
any additional payments for the delay, unless the distribution would fall in the
next calendar year, in which case the distribution date will be the last
business day of the calendar year. A business day means any day other than a
Saturday or a Sunday, or a day on which banking institutions in New York, New
York or Wilmington, Delaware are authorized or required by law or executive
order to remain closed.
The Trust's revenue available for distribution to holders of the exchange
capital securities will be limited to our payments to the Trust under our
exchange debentures. For more information, please refer to "Description of
Exchange Debentures -- General." If we do not make interest payments on the
exchange debentures, the property trustee will not have funds available to pay
distributions on the exchange capital securities. Our guarantee only covers the
payment of distributions if and to the extent that the Trust has funds legally
available to pay the distributions. You should read "-- Description of Exchange
Guarantee" for more information about the extent of our exchange guarantee.
Option to Defer Interest Payments
As long as no event of default under the exchange debentures exists, we
have the right under the indenture to elect to defer the payment of interest on
the exchange debentures, at any time or from time to time, for no more that 10
consecutive semi-annual periods, provided that no deferral period will end on a
date other than an interest payment date, or extend beyond November 1, 2029, the
stated maturity date of the exchange debentures. If we defer payments, the
Trust will defer semi-annual distributions on the exchange capital securities
during the deferral period. During any deferral period, distributions will
continue to accumulate on the exchange capital securities and on any accumulated
and unpaid distributions, compounded semi-annually from the relevant
distribution date at the applicable distribution rate, which will be equal to
the applicable
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interest rate on the exchange debentures. The term distributions includes any
accumulated additional distributions.
Before the end of any deferral period, we may extend the deferral period,
as long as the extension does not cause the deferral period to exceed 10
consecutive semi-annual periods or to end on a date other than an interest
payment date or extend beyond November 1, 2029. At the end of any deferral
period and upon the payment of all amounts then due on any interest payment
date, we may elect to begin a new deferral period, subject to the above
requirements. No interest shall be due and payable during a deferral period
until the deferral period ends. We must give the property trustee, the
administrative trustees and the debenture trustee notice of our election to
defer interest payments or to extend a deferral period at least five business
days before the earlier of:
. the date the distributions on the exchange capital securities would
have been payable, except for the election to begin a deferral period;
and
. the date the administrative trustees are required to give notice to
any securities exchange or automated quotation system or to holders of
the exchange capital securities of the record date or the date such
distributions are payable, but in any event not less than five
business days prior to such record date.
There is no limitation on the number of times that we may elect to begin a
deferral period. Please refer to "Description of Exchange Debentures -- Option
to Extend Interest Payment Date" and "Certain Federal Income Tax Consequences --
Interest Income and Original Issue Discount."
During any deferral period, we may not:
. declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of our
capital stock;
. make any payment of principal of, or interest or premium, if any, on,
or repay, repurchase or redeem any debt securities that rank equal or
junior to the exchange debentures; or
. make any guarantee payments with respect to any guarantee of the debt
securities of any of our subsidiaries if such guarantee ranks equal or
junior to the exchange debentures.
Notwithstanding the foregoing, during a deferral period the following is
permitted:
. a payment of dividends or distributions in shares of, or options,
warrants or rights to subscribe for or purchase shares of, our common
stock;
. a 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
under such plan;
. a payment under the guarantee;
. a reclassification of our capital stock or the exchange or conversion
of one class or series of our capital stock for another class or
series of our capital stock;
. the purchase of fractional interests in shares of our capital stock
pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged; and
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. the purchase of common stock related to the issuance of common stock
or rights under any of our benefit plans for our directors, officers
or employees or any of our dividend reinvestment plans.
We do not currently intend to exercise our right to defer payments of
interest on the exchange debentures.
Redemption
Upon repayment at maturity on November 1, 2029 or prepayment, in whole or
in part prior to November 1, 2029, of the exchange debentures (other than
following the distribution of the exchange debentures to you as a holder of the
exchange capital securities and us, as the holder of the common securities), the
property trustee will apply the proceeds from the repayment or prepayment of the
exchange debentures (as long as the property trustee has received written notice
no later than 45 days before the repayment) to redeem at the applicable
redemption price exchange capital securities and common securities having an
aggregate liquidation amount equal to the principal amount of the exchange
debentures paid to the Trust. The Trust will give notice of any redemption of
exchange capital securities between 30 to 60 days prior to the redemption date.
If we prepay less than all of the exchange debentures on the stated
maturity date or a redemption date, then the property trustee will allocate the
proceeds of the prepayment on a pro rata basis among the exchange capital
securities and the common securities. If a court of competent jurisdiction
enters an order to dissolve the Trust, the exchange debentures will be subject
to optional prepayment in whole, but not in part, on or after November 1, 2009.
We will have the right to prepay the exchange debentures:
. in whole or in part, on or after November 1, 2009; and
. in whole but not in part, prior to November 1, 2009, if there are
changes in the bank regulatory, investment company or tax laws that
would adversely affect the status of the Trust, the exchange capital
securities or the exchange debentures.
We may have to obtain regulatory approval, including the approval of the
OTS, before we redeem any exchange debentures. Please refer to "Description of
Exchange Debentures -- Optional Prepayment" and "-- Special Event Prepayment"
for information on prepayment of the exchange debentures.
The redemption prices applicable to the exchange capital securities will
correspond to the maturity and prepayment prices applicable to the exchange
debentures.
Liquidation of the Trust and Distribution of Exchange Debentures
We will have the right at any time to dissolve the Trust and, after
satisfying the liabilities owed to the Trust's creditors, as required by
applicable law, we will have the right to distribute the exchange debentures to
the holders of the exchange capital securities and to us as holder of the common
securities. Our right to dissolve the Trust is subject to our receiving:
. an opinion of counsel to the effect that if we distribute the exchange
debentures, the holders of the exchange capital securities will not
experience a taxable event; and
. all required regulatory approvals.
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The Trust will automatically dissolve if:
. certain bankruptcy events occur, or we dissolve or liquidate;
. we distribute exchange debentures having a principal amount equal to
the liquidation amount of the exchange capital securities and the
common securities to holders of such securities and we, as sponsor,
have given written directions to the property trustee to dissolve the
Trust (which direction is at our option and, except as described
above, wholly within our discretion, as sponsor);
. the Trust redeems all of the exchange capital securities and common
securities in accordance with their terms;
. the Trust's term expires; or
. a court of competent jurisdiction enters an order for the dissolution
of the Trust.
If the Trust is dissolved for any of the above reasons, except for a
redemption of all exchange capital securities and the common securities, it will
be liquidated by the administrative trustees as quickly as they determine to be
possible by distributing to holders of the exchange capital securities and the
common securities, after satisfying the liabilities owed to the Trust's
creditors, as provided by applicable law, exchange debentures having a principal
amount equal to the liquidation amount of the exchange capital securities and
the common securities, unless the property trustee determines that this
distribution is not practicable. If the property trustee determines that this
distribution is not practicable, the holders of the exchange capital securities
will be entitled to receive an amount equal to the aggregate of the liquidation
amount plus accumulated and unpaid distributions on the exchange capital
securities to the date of payment (such amount being the "liquidation
distribution") out of the assets of the Trust legally available for distribution
to holders, after satisfying the liabilities owed to the Trust's creditors as
provided by applicable law. If the liquidation distribution can be paid only in
part because the Trust has insufficient assets legally available to pay the full
amount of the liquidation distribution, or if an event of default under the
exchange debentures exists, the exchange capital securities will have a priority
over the common securities. For more information, please refer to "--
Subordination of Common Securities."
After the liquidation date is fixed for any distribution of exchange
debentures to holders of the exchange capital securities:
. the exchange capital securities will no longer be deemed to be
outstanding;
. DTC or its nominee will receive in respect of each registered global
certificate representing exchange capital securities a registered
global certificate representing the exchange debentures to be
delivered upon this distribution; and
. any certificates representing exchange capital securities not held by
DTC or its nominee will be deemed to represent exchange debentures
having a principal amount equal to the liquidation amount of those
exchange capital securities, and bearing accrued and unpaid interest
in an amount equal to the accumulated and unpaid distributions on
those exchange capital securities until such certificates are
presented to the administrative trustees or their agent for
cancellation, in which case we will issue to those holders, and the
debenture trustee will authenticate, a certificate representing the
exchange debentures.
We cannot assure you of the market prices for the exchange capital
securities or the exchange debentures that may be distributed to you in exchange
for the exchange capital securities if a dissolution and liquidation of the
Trust were to occur. Accordingly, the exchange capital securities that you
purchase, or the
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exchange debentures that you may receive upon a dissolution and liquidation of
the Trust, may trade at a discount to the price that you paid to purchase the
exchange capital securities.
If we elect not to prepay the exchange debentures prior to maturity and
either elect not to or we are unable to liquidate the Trust and distribute the
exchange debentures to holders of the exchange capital securities, the exchange
capital securities will remain outstanding until the repayment of the exchange
debentures on November 1, 2029.
Redemption Procedures
If we pay the exchange debentures at maturity or earlier prepayment, the
Trust will redeem exchange capital securities at the applicable redemption price
with the proceeds that it receives from our payment or prepayment of the
exchange debentures. Any redemption of exchange capital securities will be made
and the applicable redemption price will be payable on the redemption date only
to the extent that the Trust has funds legally available to pay the applicable
redemption price. For more information, you should refer to "-- Subordination of
Common Securities."
If the Trust gives a notice of redemption for the exchange capital
securities, then, by 12:00 noon, New York City time, on the redemption date, to
the extent funds legally are available, with respect to:
. the exchange capital securities held by DTC or its nominees, the
property trustee will deposit, or cause the paying agent to deposit,
irrevocably with DTC funds sufficient to pay the applicable redemption
price. For more information, you should refer to "-- Form,
Denomination, Book-Entry Procedures and Transfer."
. the exchange capital securities held in certificated form, the
property trustee will irrevocably deposit with the paying agent funds
sufficient to pay the applicable redemption price and will give the
paying agent irrevocable instructions and authority to pay the
applicable redemption price to the holders upon surrender of their
certificates evidencing the exchange capital securities. For more
information, you should refer to "-- Payment and Paying Agency."
The paying agent will initially be the property trustee and any co-paying
agent chosen by the property trustee and acceptable to the administrative
trustees and us.
Notwithstanding the foregoing, distributions payable on or before the
redemption date will be payable to the holders of the exchange capital
securities on the relevant record dates for the related distribution dates. If
the Trust gives a notice of redemption and funds are deposited as required, then
upon the date of the deposit, all rights of the holders of the exchange capital
securities called for redemption will cease, except the right of the holders of
the exchange capital securities to receive the applicable redemption price,
without interest, and the exchange capital securities called to be redeemed will
cease to be outstanding.
If any redemption date for the exchange capital securities is not a
business day, then the applicable redemption price, without interest or any
other payment in respect of the delay, will be paid on the next business day,
except that, if the next business day falls in the next calendar year, the
payment shall be made on the last business day of the calendar year.
If payment of the applicable redemption price is improperly withheld or
refused and not paid either by the Trust or by us pursuant to the guarantee:
. distributions on the exchange capital securities will continue to
accumulate from the redemption date originally established by the
Trust to the date such applicable redemption price is actually paid;
and
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. the actual payment date will be the redemption date for purposes of
calculating the applicable redemption price.
Notice of any redemption will be mailed between 30 and 60 days before the
redemption date to each holder of exchange capital securities at its registered
address.
Subject to applicable law, including, without limitation, federal
securities laws, we or our subsidiaries may at any time, and from time to time,
purchase outstanding exchange capital securities in the open market or by
private agreement.
Subordination of Common Securities
Payment of distributions on, the redemption price of, and the liquidation
distribution for, the exchange capital securities and the common securities, as
applicable, will generally be made on a pro rata basis. However, if an event of
default under the exchange debentures exists on any distribution, redemption or
liquidation date, no payment of any distribution on, or applicable redemption
price of, or liquidation distribution for, any of the common securities, and no
other payment on account of the redemption, liquidation or other acquisition of
the common securities, will be made unless payment in full in cash of all
accumulated and unpaid distributions on all of the outstanding exchange capital
securities for all distribution periods terminating on or before the
distribution, redemption or liquidation date, or payment of the applicable
redemption price or liquidation distribution is made in full. All funds
available to the property trustee will first be applied to the payment in full
in cash of all distributions on, or redemption price of, or liquidation
distribution for, the exchange capital securities then due and payable.
In the case of any event of default under the trust agreement, we, as
holder of all of the common securities, will be deemed to have waived any right
to act with respect to the event of default until the effect of the event of
default has been cured or waived. Until any event of default has been cured or
waived, the property trustee will act solely on behalf of the holders of the
exchange capital securities and not on our behalf, and only the holders of the
exchange capital securities will have the right to direct the property trustee
to act on their behalf.
Events of Default; Notice
An event of default under the exchange debentures constitutes an event of
default under the trust agreement. See "Description of Exchange Debentures --
Events of Default Under the Exchange Debentures."
The trust agreement provides that within ten (10) business days after a
responsible officer, as defined in the trust agreement, of the property trustee
has actual knowledge of the occurrence of any event of default, the property
trustee will give notice of the event of default to the holders of the exchange
capital securities, the administrative trustees and, to us, as sponsor, unless
the event of default has been cured or waived. We, as sponsor, and the
administrative trustees are required to file annually with the property trustee
a certificate as to whether we and the administrative trustees have complied
with the applicable conditions and covenants of the trust agreement.
If an event of default under the exchange debentures exists, the exchange
capital securities will have a preference over the common securities as
described under "-- Liquidation of the Trust and Distribution of Exchange
Debentures" and "-- Subordination of Common Securities." An event of default
does not entitle the holders of exchange capital securities to require the
redemption of the exchange capital securities.
Removal of Issuer Trustees
Unless an event of default under the exchange debentures exists, we may
remove the property trustee and the Delaware trustee at any time. If an event of
default under the exchange debentures exists, the property trustee and the
Delaware trustee may be removed only by the holders of a majority in liquidation
amount of the
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outstanding exchange capital securities. In no event will the holders of the
exchange capital securities have the right to vote to appoint, remove or replace
the administrative trustees, because these voting rights are vested exclusively
in us as the holder of all of the common securities. No resignation or removal
of the property trustee or the Delaware trustee and no appointment of a
successor trustee shall be effective until the acceptance of appointment by the
successor trustee in accordance with the trust agreement.
Co-trustees and Separate Property Trustee
Unless an event of default under the exchange debentures shall have
occurred and be continuing, at any time or times, for the purpose of meeting the
legal requirements of the Trust Indenture Act or of any jurisdiction in which
any part of the Trust's property may at any time be located, the administrative
trustees shall have power to appoint one or more persons either to act as a co-
trustee, jointly with the property trustee, of all or any part of such Trust's
property, or to act as separate trustee of any such property, in either case
with such powers as may be provided in the instrument of appointment, and to
vest in such person or persons in such capacity any property, title, right or
power deemed necessary or desirable, subject to the provisions of the trust
agreement. In case an event of default has occurred and is continuing, the
property trustee alone shall have the power to make any such appointment of a
co-trustee.
Merger or Consolidation of Issuer Trustees
If the property trustee, the Delaware trustee or any administrative trustee
that is not a natural person is merged, converted or consolidated into another
entity, or such trustee is a party to a merger, conversion or consolidation
which results in a new entity, or an entity succeeds to all or substantially all
of the corporate trust business of such trustee, the new entity shall be the
successor of the such trustee under the trust agreement, provided that the
entity is otherwise qualified and eligible.
Mergers, Consolidations, Amalgamations or Replacements of the Trust
The Trust may not merge with or into, consolidate, amalgamate or be
replaced by, or convey, transfer or lease all or substantially all of its
properties and assets to any corporation or other entity, except as described
below or as otherwise described under "-- Liquidation of the Trust and
Distribution of Exchange Debentures." The Trust may, at our request, as sponsor,
and with the consent of the administrative trustees but without the consent of
the holders of the exchange capital securities, merge with or into, consolidate,
amalgamate or be replaced by or convey, transfer or lease all or substantially
all of its properties and assets to a trust organized as such under the laws of
any state; provided, that:
. the successor either:
o expressly assumes all of the obligations of the Trust with
respect to the exchange capital securities; or
o substitutes securities for the exchange capital securities that
have substantially the same terms as the exchange capital
securities so long as the substitute securities rank equal to the
exchange capital securities in priority with respect to
distributions and payments upon liquidation, redemption and
otherwise;
. we appoint a trustee of the successor possessing the same powers and
duties as the property trustee with respect to the exchange
debentures;
. the substitute securities are listed, or any substitute securities
will be listed upon notification of issuance, on any national
securities exchange or other organization on which the exchange
capital securities are then listed or quoted, if any;
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. if the exchange capital securities, substitute securities or exchange
debentures are rated by any nationally recognized statistical rating
organization prior to such transaction, the transaction does not cause
any of those securities to be downgraded by any such rating
organization;
. the transaction does not adversely affect the rights, preferences and
privileges of the holders of the exchange capital securities
(including any successor securities) in any material respect;
. the successor has a purpose substantially identical to that of the
Trust;
. prior to the transaction, we received an opinion from independent
counsel to the Trust experienced in such matters to the effect that:
o the transaction does not adversely affect the rights, preferences
and privileges of the holders of the exchange capital securities
(including any successor securities) in any material respect
(other than any dilution of such holders' interests in the new
entity);
o following the transaction, neither the Trust nor the successor
will be required to register as an investment company under the
Investment Company Act; and
o the Trust continues to be, and any successor will be, classified
as a grantor trust for U. S. federal income tax purpose; and
. we, or any permitted successor or assignee, own all of the common
securities of the successor and guarantee the obligations of the
successor under the substitute securities at least to the extent
provided by our guarantee and the common securities guarantee.
Notwithstanding the foregoing, the Trust may not, except with the consent
of holders of 100% in liquidation amount of the exchange capital securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease all or substantially all of its properties and assets to, any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if the transaction would cause the Trust or the successor
not to be classified as a grantor trust for federal income tax purposes.
Voting Rights; Amendment of the Trust Agreement
Except as provided below and under "-- Mergers, Consolidations,
Amalgamations or Replacements of the Trust" and "Description of Exchange
Guarantee -- Amendments and Assignment" and as otherwise required by law and the
trust agreement, the holders of the exchange capital securities will have no
voting rights.
We, together with the property trustee and the administrative trustees, may
amend the trust agreement from time to time, without the consent of the holders
of the exchange capital securities, to:
. cure any ambiguity, correct or supplement any provisions in the trust
agreement that may be inconsistent with any other provision, or to
make any other provisions with respect to matters or questions arising
under the trust agreement, which are not inconsistent with the other
provisions of the trust agreement;
. modify, eliminate or add to any provisions of the trust agreement as
is necessary to ensure that at all times that any exchange capital
securities are outstanding, the Trust will not be classified as an
association taxable as a corporation or to enable the Trust to qualify
as a
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grantor trust, in each case for federal income tax purposes, or to
ensure that the Trust will not be required to register as an
investment company under the Investment Company Act; or
. modify, eliminate or add any provisions of the trust agreement as is
necessary to enable us or the Trust to conduct an exchange offer in
the manner contemplated by the registration rights agreement;
provided, however, that the amendment would not adversely affect in any material
respect the interests of the holders of the exchange capital securities. Any
amendments of the trust agreement pursuant to the foregoing shall become
effective when notice of the amendment is given to the holders of the exchange
capital securities.
We, together with the property trustee and the administrative trustees, may
amend the trust agreement:
. with the consent of holders of a majority in liquidation amount of the
outstanding exchange capital securities; and
. upon receipt by the property trustee and the administrative trustees
of an opinion of counsel experienced in such matters to the effect
that the amendment or the exercise of any power granted to the
property trustee and the administrative trustees in accordance with
the amendment will not affect the Trust's classification as an entity
that is not taxable as a corporation or as being a grantor trust for
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 exchange capital
securities, no amendment may change the amount or timing of any distribution on
the exchange capital securities or otherwise adversely affect the amount of any
distribution required to be made in respect of the exchange capital securities
as of a specified date, change any of the prepayment provisions, or restrict the
right of a holder of exchange capital securities to sue for the enforcement of
any payment on or after the specified date.
So long as the property trustee holds any exchange debentures, the issuer
trustees may not:
. direct the time, method and place of conducting any proceeding for any
remedy available to the debenture trustee, or execute any trust or
power conferred on the debenture trustee with respect to the exchange
debentures;
. waive certain past defaults under the indenture;
. exercise any right to rescind or annul a declaration accelerating the
maturity of the principal of the exchange debentures; or
. consent to any amendment, modification or termination of the indenture
or the exchange debentures, where such consent shall be required,
without, in each case, obtaining the prior consent 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 exchange debentures affected by the amendment, modification or
termination, the property trustee will not give its consent without the prior
approval of each holder of the exchange capital securities.
The issuer trustees will not revoke any action previously authorized or
approved by a vote of the holders of the exchange capital securities, except by
subsequent vote of such holders. The property trustee shall notify each holder
of exchange capital securities of any notice or knowledge of default it receives
with respect to the exchange debentures. In addition to obtaining the approvals
of the holders of the exchange capital securities, prior to taking any of the
foregoing actions, the issuer trustees shall obtain an opinion of
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counsel experienced in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation for federal income tax
purposes on account of such action.
Any required approval of holders of exchange capital securities may be
given at a meeting of the holders convened for the purpose of approving the
matter or pursuant to written consent. The property trustee will cause a notice
to be given of any meeting at which holders of exchange capital securities are
entitled to vote or of any matter upon which action by written consent of such
holders is to be taken, to be given to each holder of exchange capital
securities in accordance with the trust agreement.
No vote or consent of the holders of exchange capital securities will be
required for the Trust to redeem and cancel the exchange capital securities in
accordance with the trust agreement.
Notwithstanding that holders of the exchange capital securities are
entitled to vote or consent under any of the circumstances described above, any
of the exchange capital securities that are owned by us, the Trust, the issuer
trustees or any affiliates thereof shall, for purposes of such vote or consent,
be treated as if they were not outstanding.
Form, Denomination, Book-Entry Procedures and Transfer
The exchange capital securities initially will be represented by one or
more exchange capital securities in registered, global form (collectively, the
global capital securities). The global capital securities will be deposited upon
issuance with the property trustee as custodian for DTC, in Wilmington,
Delaware, and registered in the name of DTC or its nominee, in each case for
credit to an account of a direct or indirect participant in DTC as described in
this prospectus.
In the event that exchange capital securities are issued in certificated
form, the exchange capital securities will be in blocks having a liquidation
amount of not less than $100,000 (100 exchange capital securities) and may be
transferred or exchanged only in such blocks in the manner described in this
prospectus.
Except as set forth in this prospectus, the global capital securities may
be transferred, in whole and not in part, only to another nominee of DTC or to a
successor of DTC or its nominee and only in amounts that would not cause a
holder to own less than 100 exchange capital securities. Beneficial interests in
the global capital securities may not be exchanged for exchange capital
securities in certificated form except in the limited circumstances described in
this prospectus. See "-- Exchange of Book-Entry Capital Securities for
Certificated Capital Securities."
Depositary Procedures
DTC has advised the Trust and us that it is a limited-purpose trust company
organized under the laws of the State of New York, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the Uniform
Commercial Code and a "clearing agency" registered pursuant to the provisions of
Section 17A of the Exchange Act. DTC was created to hold securities for its
participating organizations (collectively, "participants") and to facilitate the
clearance and settlement of transactions in those securities between
participants through electronic book-entry changes in accounts of its
participants, to eliminate the need for physical movement of certificates.
Participants include securities brokers and dealers (including the initial
purchaser), banks, trust companies, clearing corporations and certain other
organizations. Indirect access to DTC's system is also available to banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly (collectively,
indirect participants). Persons who are not participants may beneficially own
securities held by or on behalf of DTC only through participants or indirect
participants. The ownership interest and transfer of ownership interest of each
actual purchaser of each security held by or on behalf of DTC are recorded on
the records of participants and indirect participants.
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DTC also has advised the Trust and us that, under procedures established by
it, (1) upon deposit of the global capital securities, DTC will credit the
accounts of participants designated by the initial purchaser with the designated
liquidation amount of the global capital securities and (2) ownership of
beneficial interests in the global capital securities will be shown on, and the
transfer of ownership of the global capital securities, will be effected only
through, records maintained by DTC (with respect to participants) or by
participants and indirect participants (with respect to other owners of
beneficial interests in the global capital securities).
You may hold your interests in the global capital security directly through
DTC if you are a participant, or indirectly through organizations that are
participants. All interests in a global capital security will be subject to the
procedures and requirements of DTC. The laws of some states require that certain
persons take physical delivery in certificated form of securities that they own.
Consequently, the ability to transfer beneficial interests in a global capital
security to those persons will be limited to that extent. Because DTC can act
only on behalf of participants, which in turn act on behalf of indirect
participants and certain banks, the ability of a person having beneficial
interests in a global capital security to pledge its interests to persons or
entities that do not participate in the DTC system, or otherwise take actions in
respect of its interests, may be affected by the lack of a physical certificate
evidencing its interests. For certain other restrictions on the transferability
of the exchange capital securities, see "-- Exchange of Book-Entry Capital
Securities for Certificated Capital Securities."
Except as described below, owners of beneficial interests in the global
capital securities will not have exchange capital securities registered in their
name, will not receive physical delivery of exchange capital securities in
certificated form and will not be considered the registered owners or holders
thereof under the trust agreement for any purpose.
Payments on the global capital security registered in the name of DTC, or
its nominee, will be payable by the property trustee to DTC in its capacity as
the holder under the trust agreement. Under the terms of the trust agreement,
the property trustee will treat the persons in whose names the exchange capital
securities, including the global capital securities, are registered as the
owners thereof for the purpose of receiving such payments and for any and all
other purposes whatsoever. Neither the property trustee nor any agent thereof
has or will have any responsibility or liability for:
. any aspect of DTC's records or any participant's or indirect
participant's records relating to, or payments made on account of,
beneficial ownership interests in the global exchange capital
securities, or for maintaining, supervising or reviewing any of DTC's
records or any participant's or indirect participant's records
relating to the beneficial ownership interests in the global capital
securities; or
. any other matter relating to the actions and practices of DTC or any
of its participants or indirect participants.
DTC has advised the Trust and us that its current practice, upon receipt of
any payment on the exchange capital securities, is to credit the accounts of the
relevant participants with the payment on the payment date, in amounts
proportionate to their respective holdings in liquidation amount of the exchange
capital securities as shown on the records of DTC unless DTC has reason to
believe it will not receive payment on the payment date. Payments by
participants and indirect participants to the beneficial owners of exchange
capital securities will be governed by standing instructions and customary
practices and will be the responsibility of participants or indirect
participants and will not be the responsibility of DTC, the property trustee,
the Trust or us. None of us, the Trust or the property trustee will be liable
for any delay by DTC or any of its participants or indirect participants in
identifying the beneficial owners of the exchange capital securities, and we,
the Trust and the property trustee may conclusively rely on, and will be
protected in relying on, instructions from DTC or its nominee for all purposes.
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Any secondary market trading activity in interests in the global capital
securities will settle in immediately available funds, subject in all cases to
the rules and procedures of DTC and its participants. Transfers between
participants in DTC will be effected in accordance with DTC's procedures, and
will settle in same-day funds.
DTC has advised the Trust and us that it will take any action permitted to
be taken by a holder of exchange capital securities including, without
limitation, presenting the exchange capital securities for exchange as described
below, only at the direction of one or more participants who have an interest in
DTC's global capital securities in respect of the portion of the liquidation
amount of the exchange capital securities as to which the participant or
participants has or have given direction. However, if an event of default exists
under the trust agreement, DTC reserves the right to exchange the global capital
securities for legended exchange capital securities in certificated form and to
distribute the certificated exchange capital securities to its participants.
We believe that the information in this section concerning DTC and its
book-entry system has been obtained from reliable sources, but we do not take
responsibility for the accuracy of this information.
Although DTC has agreed to the procedures described in this section to
facilitate transfers of interests in the global capital securities among
participants in DTC, DTC is not obligated to perform or to continue to perform
these procedures, and these procedures may be discontinued at any time. None of
us, the Trust, or the property trustee will have any responsibility or liability
for any aspect of the performance by DTC or its participants or indirect
participants of any of their respective obligations under the rules and
procedures governing their operations or for maintaining, supervising or
reviewing any records relating to the global capital securities that are
maintained by DTC or any of its participants or indirect participants.
Exchange of Book-Entry Capital Securities for Certificated Capital Securities
A global capital security is exchangeable for exchange capital securities
in registered certificated form if:
. DTC:
o notifies the Trust that it is unwilling or unable to continue as
depository for the global capital security; or
o has ceased to be a clearing agency registered under the Exchange
Act, and the Trust thereupon fails to appoint a successor
depository within 90 days;
. the Trust in its sole discretion elects to cause the issuance of the
exchange capital securities in certificated form; or
. there shall have occurred and be continuing an event of default or any
event which after notice or lapse of time or both would be an event of
default under the trust agreement.
In addition, beneficial interests in a global capital security may be exchanged
by or on behalf of DTC for certificated exchange capital securities upon request
by DTC, but only upon at least 20 days' prior written notice given to the
property trustee in accordance with DTC's customary procedures. In all cases,
certificated exchange capital securities delivered in exchange for any global
capital security or beneficial interests therein will be registered in the
names, and issued in any approved denominations, requested by or on behalf of
the depository in accordance with its customary procedures.
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Payment and Paying Agency
The Trust will make payments on any global capital security to DTC, which
will credit the relevant accounts at DTC on the applicable distribution dates.
The Trust will make payments on the exchange capital securities that are not
held by DTC by mailing a check to the address of the holder entitled to the
payment as the holder's address appears on the register. The paying agent will
initially be the property trustee and any co-paying agent chosen by the property
trustee and acceptable to the administrative trustees and us. The paying agent
will be permitted to resign as paying agent upon 30 days' notice to the property
trustee, the administrative trustees and us. In the event that the property
trustee is no longer the paying agent, the administrative trustees will appoint
a successor (which must be a bank or trust company acceptable to the
administrative trustees and us) to act as paying agent.
Restrictions on Transfer
The exchange capital securities will be issued, and may be transferred,
only in blocks having a liquidation amount of not less than $100,000 (100
exchange capital securities) and multiples of $1,000 in excess of $100,000. Any
attempted sale, transfer or other disposition of exchange capital securities in
a block having a liquidation amount of less than $100,000 will be deemed to be
void and of no legal effect whatsoever. Any such purported transferee will be
deemed not to be the holder of such exchange capital securities for any purpose,
including but not limited to the receipt of distributions on such exchange
capital securities, and such purported transferee will be deemed to have no
interest whatsoever in such exchange capital securities.
Registrar and Transfer Agent
The property trustee will act as registrar and transfer agent for the
exchange capital securities.
The Trust will register transfers of the exchange capital securities
without charge, except for any tax or other governmental charges that may be
imposed in connection with any transfer or exchange. The Trust will not be
required to have the transfer of the exchange capital securities registered
after they have been called for redemption.
Miscellaneous
The administrative trustees are authorized and directed to conduct the
affairs of and to operate the Trust so that:
. the Trust will not be deemed to be an investment company required to
be registered under the Investment Company Act;
. the Trust will be classified as a grantor trust for federal income tax
purposes; and
. the exchange debentures will be treated as our indebtedness for
federal income tax purposes.
We, together with the administrative trustees, are authorized to take any
action, not inconsistent with applicable law, the certificate of trust of the
Trust or the trust agreement, that we and the administrative trustees determine
in our discretion is necessary or desirable, as long as it does not materially
adversely affect the interests of the holders of the trust securities.
The trust agreement provides that holders of the trust securities have no
preemptive or similar rights to subscribe for any additional exchange capital
securities and the issuance of exchange capital securities and the common
securities is not subject to preemptive or similar rights.
The Trust may not borrow money, issue debt, execute mortgages or pledge any
of its assets.
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Governing Law
The trust agreement and exchange capital securities will be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to conflict of law principles.
Information Concerning the Property Trustee
Except if an event of default exists under the trust agreement, the
property trustee will undertake to perform only the duties specifically set
forth in the trust agreement. While such an event of default exists, the
property trustee must exercise the same degree of care and skill as a prudent
person would exercise or use in the conduct of his or her own affairs. Subject
to this provision, the property trustee is not obligated to exercise any of the
powers vested in it by the trust agreement at the request of any holder of trust
securities, unless it is offered reasonable indemnity against the costs,
expenses and liabilities that it might incur. If no event of default exists and
the property trustee is required to decide between alternative causes of action
or to construe ambiguous provisions in the trust agreement or is unsure of the
application of any provision of the trust agreement, and the matter is not one
on which holders of the exchange capital securities or the common securities are
entitled under the trust agreement to vote, then the property trustee shall take
such action as directed by us and, if not 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.
DESCRIPTION OF EXCHANGE DEBENTURES
This summary describes the material provisions of the exchange debentures.
It is not complete and is subject to, and qualified in its entirety by, the
indenture. The indenture will not be qualified under the Trust Indenture Act,
except upon effectiveness of the exchange offer registration statement or the
shelf registration statement. However, by its terms, the indenture will
incorporate by reference certain provisions of the Trust Indenture Act and, upon
consummation of the exchange offer or effectiveness of the shelf registration
statement, the indenture will be governed by and subject to the Trust Indenture
Act. We have incorporated the definitions used in the indenture in this
prospectus. You can obtain a copy of the indenture by requesting it from us.
Wilmington Trust Company will act as debenture trustee under the indenture.
General
The Trust invested the proceeds from the sale of the capital securities and
the common securities in the original junior subordinated debentures issued by
us. The original junior subordinated debentures bear interest at the annual rate
of 9.75% of the principal amount of the original junior subordinated debentures,
payable semi-annually in arrears on interest payment dates of May 1st and
November 1st of each year to the person in whose name each original junior
subordinated debenture is registered at the close of business on the relevant
record date. The exchange debentures will have terms identical in all material
respects to the original junior subordinated debentures, except that the
exchange debentures will not contain terms with respect to transfer restrictions
under the Securities Act and will not provide for any liquidated damages. The
first interest payment date for the exchange debentures will be May 1, 2000. The
period beginning on and including the date the exchange debentures are first
issued and ending on but excluding May 1, 2000 and each period beginning on and
including an interest payment date and ending on but excluding the next interest
payment date is an interest period.
We anticipate that, until the liquidation, if any, of the Trust, each
exchange debenture will be held by the property trustee in trust for the benefit
of the holders of the exchange capital securities. The amount of interest
payable for any interest period will be computed on the basis of a 360-day year
of twelve 30-day months. In the event that any interest payment date would
otherwise fall on a day that is not a business day, the required payment will be
made on the next business day (without any interest or other payment due to the
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delay), unless it would fall in the next calendar year, in which case the
interest payment date shall be the last business day of the calendar year.
Accrued interest that is not paid on the applicable interest payment date
will bear additional interest (to the extent permitted by law) at the rate of
9.75% per year, compounded semi-annually, from the last interest payment date
for which interest was paid. The term "interest" as used in this prospectus
includes semi-annual interest payments and interest on semi-annual interest
payments not paid on the applicable interest payment date.
Notwithstanding anything to the contrary above, if the stated maturity date
or date of earlier redemption falls on a day that is not a business day, the
payment of principal, premium, if any, and interest will be paid on the next
business day, with the same force and effect as if made on such date, and no
interest on such payments will accrue from and after such date.
The exchange debentures will be issued as a series of junior subordinated
deferrable interest debentures under the indenture.
The exchange debentures will mature on November 1, 2029, unless redeemed
prior to such date in accordance with the terms discussed below.
The exchange debentures will rank equal to all of our other subordinated
debentures which have been or may be issued to other trusts established by us,
in each case similar to the Trust, and will be unsecured and rank subordinate
and junior to all of our senior indebtedness to the extent and in the manner set
forth in the indenture. See "-- Subordination."
We are a unitary savings and loan association holding company regulated by
the OTS, and almost all of our operating assets are owned by Astoria Federal. We
are a legal entity separate and distinct from our subsidiaries. Holders of
exchange debentures should look only to us for payments on the exchange
debentures. The principal sources of our income are dividends, interest and fees
from Astoria Federal. We rely primarily on dividends from Astoria Federal to
meet our obligations for payment of principal and interest on our outstanding
debt obligations and corporate expenses. Dividend payments from Astoria Federal
are subject to regulatory limitations, generally based on current and retained
earnings, imposed by the OTS. See "Regulation and Supervision." Currently,
approximately $191.6 million is available for the payment of dividends to us
without further approval from the OTS.
We cannot assure you that Astoria Federal will be able to pay dividends at
past levels, or at all, in the future. See the section entitled "Regulation and
Supervision" in our Annual Report on Form 10-K for the year ended December 31,
1998, which is incorporated in this prospectus by reference.
In addition to restrictions on the payment of dividends, Astoria Federal is
subject to certain restrictions imposed by federal law on any extensions of
credit to, and certain other transactions with, us and certain other affiliates,
and on investments in stock or other securities thereof. See "Regulation and
Supervision." As of September 30, 1999, approximately $135.2 million of credit
was available to us under these limitations, if adequate collateral would have
been available to secure such borrowings.
Also, as a holding company, our right to receive any distribution of assets
of any subsidiary, upon such subsidiary's liquidation or reorganization or
otherwise (and thus your right to benefit indirectly from such distribution), is
subject to the prior claims of creditors of that subsidiary (including
depositors, in the case of Astoria Federal), except to the extent that we may be
recognized as a creditor of that subsidiary. At September 30, 1999, Astoria
Federal, our only direct subsidiary, had total liabilities, including deposits,
of $21.54 billion. Accordingly, the exchange debentures will be effectively
subordinated to all existing and future liabilities of our subsidiaries
(including Astoria Federal's deposit liabilities) and all liabilities of any of
our future subsidiaries. The indenture does not limit the incurrence or
issuance of other secured or unsecured debt by us or any subsidiary, including
senior indebtedness. See "-- Subordination."
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Form, Registration and Transfer
If the exchange debentures are distributed to the holders of the exchange
capital securities, the exchange debentures may be represented by one or more
global certificates registered in the name of Cede & Co., as the nominee of DTC.
The depositary arrangements for such exchange debentures are expected to be
substantially similar to those in effect for the exchange capital securities.
For a description of DTC and the terms of the depositary arrangements relating
to payments, transfers, voting rights, redemptions and other notices and other
matters, you should read "Description of Exchange Capital Securities -- Form,
Denomination, Book-Entry Procedures and Transfer."
Payment and Paying Agents
Payment of principal of (and premium, if any) and interest on the exchange
debentures will be made at the office of the debenture trustee in Wilmington,
Delaware or at the office of such paying agent or paying agents as we may
designate from time to time, except that, at our option, payment of any interest
may be made, except in the case of exchange debentures in global form:
. by check mailed to the address of the person or entity entitled to the
interest payment as such address shall appear in the register for the
exchange debentures; or
. by transfer to an account maintained by the person or entity entitled
to the interest payment as specified in the register, provided that
proper transfer instructions have been received by the relevant record
date.
Payment of any interest on any exchange debenture will be made to the
person or entity in whose name the exchange debenture is registered at the close
of business on the record date for the interest payment date, except in the case
of defaulted interest.
We may at any time designate additional paying agents or rescind the
designation of any paying agent; however we will always be required to maintain
a paying agent in each place of payment for the exchange debentures.
Any moneys deposited with the debenture trustee or any paying agent, or
then held by us, in trust for the payment of the principal of (or premium, if
any) or interest on any exchange debenture and remaining unclaimed for two years
after such principal (or premium, if any) or interest has become due and payable
shall, at our request, be repaid to us and the holder of the exchange debenture
shall thereafter look, as a general unsecured creditor, only to us for payment.
Option to Extend Interest Payment Date
So long as no event of default under the exchange debentures exists, we
will have the right under the indenture to defer the payment of interest on the
exchange debentures, at any time and from time to time, for no more than 10
consecutive semi-annual periods, provided that no deferral period shall end on a
date other than an interest payment date or extend beyond November 1, 2029. At
the end of a deferral period, we must pay all interest then accrued and unpaid
(together with interest thereon at the rate of 9.75% per year, compounded semi-
annually from the last interest payment date to which interest was paid, to the
extent permitted by applicable law). During a deferral period, interest will
continue to accrue, and holders of the exchange capital securities or, if the
exchange debentures have been distributed to holders of the exchange capital
securities, holders of exchange debentures, will be required to include that
deferred interest in gross income for federal income tax purposes on an accrual
method of accounting prescribed by the Code and Treasury regulation provisions
on original issue discount prior to the receipt of cash attributable to that
income. See "Certain Federal Income Tax Consequences -- Interest Income and
Original Issue Discount."
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During any such deferral period, we may not:
. declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of our
capital stock;
. make any payment of principal of, or interest or premium, if any, on,
or repay, repurchase or redeem any of our debt securities that rank
equal to or junior to the exchange debentures; or
. make any guarantee payments with respect to any guarantee by us of the
debt securities of any of our subsidiaries (including our exchange
guarantee of the exchange capital securities of the Trust and any
other guarantees) if such guarantee ranks equal or junior to the
exchange debentures other than:
o dividends or distributions in shares of, or options, warrants or
rights to subscribe for or purchase shares of, our common stock;
o 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 rights pursuant thereto;
o payments under the exchange guarantee;
o as a result of a reclassification of our capital stock or the
exchange or conversion of one class or series of our capital
stock for another class or series of our capital stock;
o the purchase of fractional interests in shares of our capital
stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged; and
o purchases of our common stock related to the issuance of common
stock or rights under any of our benefit plans for our directors,
officers or employees or any of our dividend reinvestment plans.
Before the end of any deferral period, we may extend the deferral period,
as long as no event of default exists and the extension does not cause the
deferral period to exceed 10 consecutive semi-annual periods, to end on a date
other than an interest payment date or to extend beyond November 1, 2029. At the
end of any deferral period and upon the payment of all then accrued and unpaid
interest (together with interest thereon at the rate of 9.75% per year,
compounded semi-annually, to the extent permitted by applicable law), we may
elect to begin a new deferral period, subject to the requirements set forth in
this prospectus. No interest will be due and payable during a deferral period
until the deferral period ends.
We must give the property trustee, the administrative trustees and the
debenture trustee notice of our election at least five business days before the
earlier of:
. the date the distributions on the exchange capital securities would
have been payable, except for the election to begin or extend such
deferral period; or
. the date the administrative trustees are required to give notice to
any securities exchange or automated quotation system on which the
exchange capital securities are listed or quoted or to holders of
exchange capital securities of the record date for such distributions
or the date such distributions are payable, but in any event not less
than five business days prior to such record date.
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The debenture trustee will notify holders of the exchange capital
securities of our election to begin or extend a new deferral period.
There is no limit on the number of times that we may elect to begin a
deferral period.
We do not currently intend to exercise our right to defer payments of
interest on the exchange debentures.
Optional Prepayment
The exchange debentures will be prepayable, in whole or in part, at our
option on or after November 1, 2009, subject to our receipt of any required
regulatory approval, at an optional prepayment price equal to the percentage of
the outstanding principal amount of the exchange debentures specified below,
plus, in each case, accrued and unpaid interest on the exchange debentures, if
any, to the date of prepayment if redeemed during the 12-month period beginning
November 1st of the years indicated below:
<TABLE>
<CAPTION>
Year Percentage
---- -----------
<S> <C>
2009.................... 104.875%
2010.................... 104.388%
2011.................... 103.900%
2012.................... 103.413%
2013.................... 102.925%
2014.................... 102.438%
2015.................... 101.950%
2016.................... 101.463%
2017.................... 100.975%
2018.................... 100.488%
2019 and thereafter..... 100.000%
</TABLE>
Special Event Prepayment
If there are changes in the bank regulatory, investment company or tax laws
that adversely affect the status of the Trust, the exchange capital securities
or the exchange debentures, we may, at our option and at any time, subject to
our receipt of any required regulatory approval, prepay the exchange debentures,
in whole but not in part, at any time within 90 days of the change in the law,
at the special event prepayment price. The special event prepayment price will
be an amount equal to the greater of:
. 100% of the principal amount of the exchange debentures, or
. the sum, as determined by a quotation agent referred to below, of the
present values of the remaining scheduled payments of principal and
interest on the exchange debentures from the prepayment date to the
stated maturity date, discounted to the prepayment date on a semi-
annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the adjusted treasury rate,
plus, in the case of each of the above scenarios, accrued and unpaid interest
and liquidated damages, if any, to the date of prepayment.
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A change in the bank regulatory law means our receipt of an opinion of
independent bank regulatory counsel experienced in such matters to the effect
that, as a result of:
. any amendment to, or change (including any announced prospective
change) in, any laws or regulations of the United States or any rules,
guidelines or policies of an applicable regulatory agency or
authority; or
. any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations,
which amendment or change is effective or which pronouncement or decision is
announced on or after the date the exchange capital securities are first issued,
the exchange capital securities do not constitute, or within 90 days of the
opinion will not constitute, Tier 1 Capital (or its then equivalent if we were
subject to such capital requirement).
A change in the investment company law means the receipt by us and the
Trust of an opinion of independent securities counsel experienced in such
matters to the effect that, as a result of:
. any amendment to, or change (including any announced prospective
change) in, any laws or regulations of the United States or any rules,
guidelines or policies of any applicable regulatory agency or
authority; or
. any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations,
which amendment or change is effective or which pronouncement or decision is
announced on or after the date the exchange capital securities are first issued,
the Trust is, or within 90 days of the date of the opinion will be, considered
an investment company that is required to be registered under the Investment
Company Act.
A change in tax law means the receipt by us and the Trust of an opinion of
independent tax counsel experienced in such matters to the effect that, as a
result of:
. any amendment to, or change (including any announced prospective
change) in, any laws or regulations of the United States or any
political subdivision or taxing authority thereof or therein; or
. any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations,
which amendment or change is effective or which pronouncement or decision is
announced on or after the date the exchange capital securities are first issued,
there is more than an insubstantial risk that:
. the Trust is, or will be within 90 days of the date of such opinion,
subject to federal income tax with respect to any income received or
accrued on the exchange debentures;
. interest payable by us on the exchange debentures is not, or within 90
days of the date of such opinion will not be, deductible by us, in
whole or in part, for federal income tax purposes; or
. the Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
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Adjusted treasury rate means, with respect to a prepayment date, the rate
per annum equal to:
. the yield, under the heading which represents the average for the
immediately prior week, appearing in the most recently published
statistical release designated "H.15 (519)" or any successor
publication which is published weekly by the Federal Reserve Board and
which establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption "Treasury
Constant Maturities," for the maturity corresponding to the remaining
life, defined below (if no maturity is within three months before or
three months after the maturity corresponding to the remaining life,
yields for the two published maturities most closely corresponding to
the remaining life shall be determined, and the adjusted treasury rate
shall be interpolated or extrapolated from such yields on a straight-
line basis, rounding to the nearest month); or
. if such release (or any successor release) is not published during the
week preceding the calculation date or does not contain such yields,
the rate per annum equal to the semi-annual equivalent yield to
maturity of the comparable treasury issue, calculated using a price
for the comparable treasury issue (expressed as a percentage of its
principal amount) equal to the comparable treasury price for such
prepayment date,
plus: 270 basis points.
Comparable treasury issue means the United States Treasury security
selected by the quotation agent (defined below) having a maturity comparable to
the remaining life of the exchange debentures that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining life. If no United States Treasury security has a maturity which is
within a period from three months before to three months after the remaining
life, the two most closely corresponding United States Treasury securities, as
selected by the quotation agent, shall be used as the comparable treasury issue,
and the adjusted treasury rate shall be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month, using such securities.
Comparable treasury price means, with respect to a prepayment date:
. the average of three reference treasury dealer quotations for such
prepayment date, after excluding the highest and lowest such reference
treasury dealer quotations; or
. if the quotation agent obtains fewer than five such reference treasury
dealer quotations, the average of all such reference treasury dealer
quotations.
Quotation agent means the reference treasury dealer appointed by us.
Reference treasury dealer means a nationally recognized U.S. Government
securities dealer in New York, New York selected by us.
Reference treasury dealer quotations means, with respect to each reference
treasury dealer and the prepayment date, the average, as determined by the
debenture trustee, of the bid and asked prices for the comparable treasury issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the debenture trustee by such reference treasury dealer at 5:00 p.m.,
New York time, on the third business day preceding such prepayment date.
Remaining life means the term of the exchange debentures from the
prepayment date to the stated maturity date.
We will mail any notice of prepayment between 30 and 60 days before the
prepayment date to each holder of exchange debentures to be prepaid at its
registered address. Unless we default in payment of the
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prepayment price, on the prepayment date interest shall cease to accrue on the
exchange debentures called for prepayment.
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a change in the tax law, we will pay as
additional amounts on the exchange debentures any amounts as may be necessary in
order that the amount of distributions then due and payable by the Trust on the
outstanding exchange capital securities shall not be reduced as a result of any
additional sums, including taxes, duties or other governmental charges to which
the Trust has become subject as a result of a change in the tax law.
Certain Covenants of Astoria Financial
We will covenant that we will not:
. declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of our
capital stock;
. make any payment of principal of, or interest or premium, if any, on,
or repay, repurchase or redeem any of our debt securities that rank
equal or junior to the exchange debentures; or
. make any guarantee payments with respect to any of our guarantees of
the debt securities of any of our subsidiaries if such guarantee ranks
equal or junior to the exchange debentures, other than:
o dividends or distributions in shares of, or options, warrants or
rights to subscribe for or purchase shares of, our common stock;
o 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;
o payments under the exchange guarantee;
o as a result of a reclassification of our capital stock or the
exchange or conversion of one class or series of our capital
stock for another class or series of our capital stock;
o the purchase of fractional interests in shares of our capital
stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged; and
o purchases of our common stock related to the issuance of common
stock or rights under any of our benefit plans for its directors,
officers or employees or any of our dividend reinvestment plans,
if at such time:
. we have actual knowledge that there is any event that is, or with the
giving of notice or the lapse of time, or both, would be, an event of
default under the exchange debentures and that we have not taken
reasonable steps to cure;
. we are in default with respect to our payment obligations under the
exchange guarantee; or
. we have given notice of our election to exercise our right to defer
interest payments on the exchange debentures as provided in the
indenture and the deferral period, or any extension of the deferral
period, is continuing.
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So long as the trust capital securities remain outstanding, we also will
covenant:
. to directly or indirectly maintain 100% direct or indirect ownership
of the common securities; provided, however, that any of our permitted
successors under the indenture may succeed to our ownership of the
common securities;
. to use commercially reasonable efforts to cause the Trust to remain a
business trust, except in connection with the distribution of exchange
debentures to the holders of trust securities in liquidation of the
Trust, the redemption of all of the trust securities, or certain
mergers, consolidations or amalgamations, each as permitted by the
trust agreement;
. to use commercially reasonable efforts to cause the Trust to otherwise
continue not to be classified as an association taxable as a
corporation and to be classified as a grantor trust for federal income
tax purposes;
. to use commercially reasonable efforts to cause each holder of trust
securities to be treated as owning an undivided beneficial interest in
the junior subordinated debentures; and
. to not cause, as sponsor of the Trust, or permit, as holder of the
common securities, the dissolution, winding-up or liquidation of the
Trust, except as provided in the trust agreement.
Modification of Indenture
From time to time, we, together with the debenture trustee, may, without
the consent of the holders of exchange debentures, amend the indenture for
specified purposes, including, among other things, curing ambiguities, defects
or inconsistencies or enabling us and the Trust to conduct an exchange offer as
contemplated by the registration rights agreement, provided that any amendment
to the indenture does not materially adversely affect the interest of the
holders of exchange debentures, and qualifying, or maintaining the qualification
of, the indenture under the Trust Indenture Act.
The indenture permits us and the debenture trustee, with the consent of the
holders of a majority in aggregate principal amount of exchange debentures, to
modify the indenture in a manner affecting the rights of the holders of the
exchange debentures; provided that no modification may, without the consent of
the holders of each outstanding subordinated debenture affected:
. change the stated maturity date, or reduce the principal amount, of
the exchange debentures;
. reduce the amount payable on prepayment or reduce the rate or extend
the time of payment of interest except pursuant to our right under the
indenture to defer the payment of interest (see "-- Option to Extend
Interest Payment Date");
. change any of the prepayment provisions;
. make the principal of, (or premium, if any) or interest on, the
exchange debentures payable in any coin or currency other than that
provided in the exchange debentures;
. impair or affect the right of any holder of exchange debentures to
institute suit for the payment thereof; or
. reduce the percentage of the principal amount of the exchange
debentures, the holders of which are required to consent to any such
modification.
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Events of Default Under the Exchange Debentures
An event of default under the exchange debentures means:
. our failure for 30 days to pay any interest (including compounded
interest and additional sums, if any) or liquidated damages, if any,
on the exchange debentures or any other similar debentures when due
(subject to the deferral of any interest due date in the case of a
deferral period with respect to the exchange debentures or other
similar debentures, as the case may be);
. our failure to pay any principal or premium, if any, on the exchange
debentures or any other similar debentures when due, whether at
maturity, upon prepayment, by accelerating the maturity or otherwise;
. our failure to observe or perform any other covenant contained in the
indenture for 90 days after written notice to us from the debenture
trustee or to us and the debenture trustee from the holders of at
least 25% in aggregate outstanding principal amount of exchange
debentures; or
. certain events related to our bankruptcy, insolvency or
reorganization.
The holders of a majority in aggregate outstanding principal amount of the
exchange debentures have, subject to certain exceptions, the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the debenture trustee. The debenture trustee or the holders of not less than 25%
in aggregate outstanding principal amount of the exchange debentures may declare
the principal due and payable immediately upon an event of default under the
exchange debentures. The holders of a majority in aggregate outstanding
principal amount of the exchange debentures may annul this declaration and waive
the default if the default (other than the non-payment of the principal of the
exchange 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
exchange debentures affected may, on behalf of the holders of all the exchange
debentures, waive any past default, except a default in the payment of principal
(or premium, if any) or interest (including compounded interest and additional
sums, if any) or liquidated damages, if any (unless such default has been cured
and a sum sufficient to pay all matured installments of interest and principal
(and premium, if any) due otherwise than by acceleration has been deposited with
the debenture trustee) or a default in respect of a covenant or provision which
under the indenture cannot be modified or amended without the consent of the
holder of each outstanding exchange debenture.
The indenture requires that we file with the debenture trustee a
certificate annually as to the absence of defaults specified under the
indenture.
The indenture provides that the debenture trustee may withhold notice of a
debenture event of default from the holders of the exchange debentures if the
debenture trustee considers it in the interest of the holders to do so.
Enforcement of Certain Rights by Holders of Exchange Capital Securities
If an event of default under the exchange debentures exists that is
attributable to our failure to pay the principal of (or premium, if any) or
interest (including compounded interest and additional sums, if any) or
liquidated damages, if any, on the exchange debentures on the due date, a holder
of exchange capital securities may institute a direct action against us. We may
not amend the indenture to remove this right to bring a direct action without
the prior written consent of the holders of all of the exchange capital
securities.
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Notwithstanding any payments that we make to a holder of exchange capital
securities in connection with a direct action, we shall remain obligated to pay
the principal of (and premium, if any) and interest on the exchange debentures,
and we shall be subrogated to the rights of the holder of the exchange capital
securities with respect to payments on the exchange capital securities to the
extent that we make any payments to a holder in any direct action.
The holders of the exchange capital securities will not be able to exercise
directly any remedies, other than those described in the above paragraph,
available to the holders of the exchange debentures, unless an event of default
exists under the trust agreement. See "Description of Exchange Capital
Securities -- Events of Default; Notice."
Consolidation, Merger, Sale of Assets and Other Transactions
The indenture provides that we will not consolidate with or merge into any
other person or convey, transfer or lease all or substantially all of our
properties to any person, and no person shall consolidate with or merge into us
or convey, transfer or lease all or substantially all of its properties to us,
unless:
. in case we consolidate with or merge into another person or convey or
transfer all or substantially all of our properties to any person, the
successor is organized under the laws of the United States or any
state or the District of Columbia, and the successor expressly assumes
our obligations under the indenture with respect to the exchange
debentures;
. immediately after giving effect to the transaction, no event of
default under the exchange debentures, and no event which, after
notice or lapse of time or both, would become an event of default
under the exchange debentures, exists; and
. certain other conditions as prescribed in the indenture are met.
The general provisions of the indenture do not afford holders of the
exchange debentures protection in the event of a highly leveraged or other
transaction that we may become involved in that may adversely affect holders of
the exchange debentures.
Satisfaction and Discharge
The indenture provides that when, among other things,
. all exchange debentures not previously delivered to the debenture
trustee for cancellation have become due and payable or will become
due and payable at maturity or called for prepayment within one year,
and
. we deposit or cause 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 exchange debentures not
previously delivered to the debenture trustee for cancellation, for
the principal (and premium, if any) and interest (including compounded
interest and additional sums, if any) to the date of the deposit or to
November 1, 2029, as the case may be,
then the indenture will cease to be of further effect (except as to our
obligations to pay all other sums due pursuant to the indenture and to provide
the officers' certificates and opinions of counsel), and we will be deemed to
have satisfied and discharged the indenture.
Subordination
We have promised that any of our exchange debentures issued under the
indenture will rank junior to all of our senior indebtedness to the extent
provided in the indenture. Upon any payment or distribution of our
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assets to creditors upon our liquidation, dissolution, winding up,
reorganization, assignment for the benefit of our creditors, marshaling of our
assets or any bankruptcy, insolvency, debt restructuring or similar proceedings
in connection with any insolvency or bankruptcy proceeding involving us, the
allocable amounts in respect of the senior indebtedness must be paid in full
before the holders of the exchange debentures will be entitled to receive or
retain any payment in respect thereof.
If the maturity of exchange debentures is accelerated, the holders of all
senior indebtedness outstanding at such time will first be entitled to receive
payment in full of the allocable amounts in respect of such senior indebtedness
before the holders of exchange debentures will be entitled to receive or retain
any payment in respect of the principal of (or premium, if any) or interest, if
any, on the exchange debentures.
No payments on account of principal (or premium, if any) or interest, if
any, in respect of the exchange debentures may be made if there is a default in
any payment with respect to senior indebtedness, or an event of default exists
with respect to any senior indebtedness that accelerates the maturity of the
senior indebtedness, or if any judicial proceeding shall be pending with respect
to the 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 us 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 for money borrowed means any of our obligations, or any
obligation guaranteed by us, to repay borrowed money, whether or not evidenced
by bonds, debentures, notes or other written instruments, except that
indebtedness for money borrowed does not include trade accounts payable or
accrued liabilities arising in the ordinary course of business.
Indebtedness ranking on a parity with the exchange debentures means:
. indebtedness for money borrowed, whether outstanding on the date the
indenture is executed or created, assumed or incurred after the date
that the indenture is executed, to the extent the indebtedness for
money borrowed by its terms ranks equal to and not prior to the
exchange debentures in the right of payment upon the happening of our
dissolution, winding-up, liquidation or reorganization;
. all other debt securities, and guarantees in respect of those debt
securities, issued to any trust other than the Trust, or a trustee of
such trust, partnership or other entity affiliated with us, that is
our financing vehicle (a "financing entity"), in connection with the
issuance by the financing entity of equity securities or other
securities guaranteed by us pursuant to an instrument that ranks equal
with or junior to the exchange guarantee; and
. the securing of any indebtedness otherwise constituting indebtedness
ranking on a parity with the exchange debentures shall not be deemed
to prevent such indebtedness from constituting indebtedness ranking on
a parity with the exchange debentures.
Indebtedness ranking junior to the exchange debentures means any
indebtedness for money borrowed, whether outstanding on the date the indenture
is executed or created, assumed or incurred after the date the indenture is
executed, to the extent the indebtedness for money borrowed by its terms ranks
junior to and not equal with or prior to the exchange debentures (and any other
indebtedness ranking on a parity with the
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exchange debentures) in right of payment upon the happening of our dissolution
or winding-up or liquidation or reorganization. The securing of any indebtedness
otherwise constituting indebtedness ranking junior to the exchange debentures
shall not be deemed to prevent such indebtedness for money borrowed from
constituting indebtedness ranking junior to the exchange debentures.
Senior indebtedness means all indebtedness for money borrowed, whether
outstanding on the date the indenture is executed or created, assumed or
incurred after the date the indenture is executed, except indebtedness ranking
on a parity with the exchange debentures or indebtedness ranking junior to the
exchange debentures, and any deferrals, renewals or extensions of the senior
indebtedness.
We are a unitary savings and loan association holding company regulated by
the OTS, and almost all of our operating assets are owned by Astoria Federal.
We rely primarily on dividends from Astoria Federal to meet our obligations for
payment of principal and interest on our outstanding debt obligations and
corporate expenses. We are a legal entity separate and distinct from its
subsidiaries. Holders of exchange debentures should look only to us for
payments on the exchange debentures. There are regulatory limitations on the
payment of dividends directly or indirectly to us from Astoria Federal. In
addition, Astoria Federal is subject to certain restrictions imposed by federal
law on any extensions of credit to, and certain other transactions with, us and
certain other affiliates, and on investments in stock or other securities
thereof. See "Regulation and Supervision" for a discussion of these dividend
and borrowing restrictions. Accordingly, the exchange debentures will be
effectively subordinated to all existing and future liabilities of our
subsidiaries.
Also, as a holding company, our right to receive any distribution of assets
of any subsidiary upon such subsidiary's liquidation or reorganization or
otherwise (and thus your right to benefit indirectly from such distribution), is
subject to the prior claims of creditors of that subsidiary (including
depositors, in the case of Astoria Federal), except to the extent we may be
recognized as a creditor of that subsidiary. At December 31, 1999, Astoria
Federal, our only direct subsidiary, had total liabilities, including deposits,
of $21.50 billion. Accordingly, the exchange debentures will be effectively
subordinated to all existing and future liabilities of our subsidiaries
(including Astoria Federal's deposit liabilities) and all liabilities of any of
our future subsidiaries. The indenture does not limit the incurrence or
issuance of other secured or unsecured debt of us or any subsidiary, including
senior indebtedness.
Restrictions on Transfer
The exchange debentures will be issued and may be transferred only in
blocks having an aggregate principal amount of not less than $100,000 and
multiples of $1,000 in excess thereof. Any attempted transfer of exchange
debentures in a block having an aggregate principal amount of less than $100,000
will be deemed to be void and of no legal effect whatsoever. Any such purported
transferee shall be deemed not to be the holder of such exchange debentures for
any purpose, including but not limited to the receipt of payments on such
exchange debentures, and such purported transferee shall be deemed to have no
interest whatsoever in such exchange debentures.
Governing Law
The indenture and the exchange debentures will be governed by and construed
in accordance with the laws of the State of New York, without regard to conflict
of law principles.
Information Concerning the Debenture Trustee
Following the exchange offer and the qualification of the indenture under
the Trust Indenture Act, the debenture trustee will 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 not obligated to exercise any of the powers vested in it by the
indenture at the request of any holder of exchange debentures, unless offered
reasonable indemnity by the holder against the costs, expenses and liabilities
which
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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 under the indenture.
DESCRIPTION OF EXCHANGE GUARANTEE
We will execute and deliver the exchange guarantee at the same time the
exchange capital securities are issued. The exchange guarantee will be qualified
as an indenture under the Trust Indenture Act upon effectiveness of the
exchange offer registration statement. The terms of the exchange guarantee are
identical in all material respects to the terms of the original guarantee. This
summary of the material provisions of the exchange guarantee is not complete and
is subject to, and qualified in its entirety by, the exchange guarantee and the
Trust Indenture Act. The guarantee trustee will hold the exchange guarantee for
the benefit of the holders of the exchange capital securities. You can obtain a
copy of the exchange guarantee by requesting it from Astoria Financial.
Wilmington Trust Company will act as guarantee trustee under the exchange
guarantee.
General
We will irrevocably agree to pay in full on a subordinated basis, to the
extent set forth in this prospectus, the following payments with respect to the
exchange capital securities to the extent not paid by the Trust:
. any accumulated and unpaid distributions required to be paid on the
exchange capital securities, to the extent that the Trust has funds
legally available at that time;
. the applicable redemption price with respect to the exchange capital
securities called for redemption, to the extent that the Trust has
funds legally available at that time; and
. upon a voluntary or involuntary dissolution, winding-up or liquidation
of the Trust (other than in connection with the distribution of the
exchange debentures to holders of the exchange capital securities or
the redemption of all exchange capital securities), the lesser of (a)
the liquidation distribution, to the extent the Trust has funds
legally available at that time, and (b) the amount of assets of the
Trust remaining available for distribution to holders of exchange
capital securities after satisfying the liabilities owed to the
Trust's creditors as required by applicable law.
The exchange guarantee will rank subordinate and junior to all senior
indebtedness to the extent provided in the exchange guarantee. See "-- Status of
the Exchange Guarantee." Our obligation to make a guarantee payment may be
satisfied by our direct payment of the required amounts to the holders of the
exchange capital securities or by causing the Trust to pay these amounts to the
holders of the exchange capital securities.
The exchange guarantee will be an irrevocable guarantee on a subordinated
basis of the Trust's obligations under the exchange capital securities, but will
apply only to the extent that the Trust has funds sufficient to make these
payments. If we do not make payments on the exchange debentures held by the
Trust, then it will not be able to make the related payments to you on the
exchange capital securities and will not have funds legally available. Please
refer to the "Relationship among the Exchange Capital Securities, the
Subordinated Debentures and the Exchange Guarantee" section of this prospectus.
The holders of a majority in aggregate liquidation amount of the exchange
capital securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the guarantee trustee in
respect of our guarantee or to direct the exercise of any trust power conferred
upon the guarantee trustee under our guarantee. If the guarantee trustee fails
to enforce the exchange guarantee, any holder of the exchange capital securities
may institute a legal proceeding directly against us to enforce their
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rights under the exchange guarantee without first instituting a legal proceeding
against the Trust, the guarantee trustee or any other person or entity.
If we default on our obligation to pay amounts payable under the exchange
debentures, the Trust will lack funds for the payment of distributions or
amounts payable on redemption of the exchange capital securities or otherwise,
and the holders of the exchange capital securities will not be able to rely upon
the exchange guarantee for payment of such amounts. Instead, if an event of
default under the exchange debentures exists that is attributable to our failure
to pay principal of (or premium, if any) or interest on the exchange debentures
on a payment date, then any holder of exchange capital securities may institute
a direct action against us pursuant to the terms of the indenture for
enforcement of payment to that holder of the principal of (or premium, if any)
or interest on such exchange debentures having a principal amount equal to the
aggregate liquidation amount of the exchange capital securities of that holder.
In connection with a direct action, we will have a right of set-off under the
indenture to the extent that we made any payment to the holder of exchange
capital securities in the direct action. Except as described in this prospectus,
holders of exchange capital securities will not be able to exercise directly any
other remedy available to the holders of the exchange debentures or assert
directly any other rights in respect of the exchange debentures. The trust
agreement provides that each holder of exchange capital securities by accepting
the exchange capital securities agrees to the provisions of the exchange
guarantee and the indenture.
We will, through our guarantee, the trust agreement, the exchange
debentures and the indenture, taken together, fully, irrevocably and
unconditionally guarantee all of the Trust's obligations under the exchange
capital securities. No single document standing alone, or operating in
conjunction with fewer than all of the other documents, constitutes that
guarantee. Only the combined operation of these documents provides a full,
irrevocable and unconditional guarantee of the Trust's obligations under the
exchange capital securities. You should refer to "Relationship among the
Exchange Capital Securities, the Exchange Debentures and the Exchange Guarantee"
for more information about our guarantee.
Status of the Exchange Guarantee
Our exchange guarantee will constitute an unsecured obligation and will
rank subordinate and junior to all senior indebtedness in the same manner as the
exchange debentures. See "Description of Exchange Debentures -- Subordination."
In addition, because we are a holding company, our right to participate in any
distribution of the assets of our subsidiaries, including Astoria Federal, upon
their liquidation or reorganization or otherwise is subject to the prior claims
of their creditors (including Astoria Federal's depositors), except to the
extent we may be recognized as their creditor. Accordingly, our obligations
under the exchange guarantee effectively will be subordinated to all existing
and future liabilities of our present and future subsidiaries (including
depositors of Astoria Federal). As a result, claimants should look only to our
assets for payments under the exchange guarantee. See "Description of Exchange
Debentures -- General."
Our guarantee will rank equal to all of our other guarantees with respect
to preferred beneficial interests issued by other trusts. Our guarantee of the
Trust's exchange capital securities does not limit the amount of secured or
unsecured debt, including senior indebtedness, that we or any of our
subsidiaries may incur. We expect from time to time that we will incur
additional indebtedness and that our subsidiaries will also incur additional
liabilities.
Our guarantee will constitute a guarantee of payment and not of collection,
enabling the guaranteed party to institute a legal proceeding directly against
us to enforce their rights under the exchange guarantee without first
instituting a legal proceeding against any other person or entity. Our guarantee
will not be discharged, except by payment of the exchange guarantee payments in
full to the extent that the Trust has not paid, or upon distribution of the
exchange debentures to, the holders of the exchange capital securities.
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Events of Default
There will be an event of default under the exchange guarantee if we fail
to perform any of our payment or other obligations under the exchange guarantee;
except that with respect to a default in payment of any guarantee payment, we
shall have received notice of default and shall not have cured the default
within 60 days after receipt of the notice. We, as guarantor, will be required
to file annually with the guarantee trustee a certificate regarding our
compliance with the applicable conditions and covenants under our guarantee.
Amendments and Assignment
Except with respect to any changes that do not materially adversely affect
the rights of holders of the exchange capital securities (in which case no
approval will be required), the exchange guarantee may not be amended without
the prior approval of the holders of a majority of the liquidation amount of
such outstanding capital securities. You should read "Description of Exchange
Capital Securities -- Voting Rights; Amendment of the Trust Agreement" for more
information about the manner of obtaining the holders' approval. All guarantees
and agreements contained in the exchange guarantee shall bind our successors,
assigns, receivers, trustees and representatives and shall inure to the benefit
of the holders of the exchange capital securities then outstanding.
Termination of the Exchange Guarantee
Our guarantee will terminate and be of no further force and effect upon:
. full payment of the applicable redemption price of all outstanding
exchange capital securities;
. full payment of the liquidation amount payable upon liquidation of the
Trust; or
. distribution of exchange debentures to the holders of the exchange
capital securities.
Our guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any holder of the exchange capital securities must
restore payment of any sums paid under the exchange capital securities or the
exchange guarantee.
Governing Law
The exchange guarantee will be governed by and construed in accordance with
the laws of the State of New York, without regard to conflict of law principles.
Information Concerning the Guarantee Trustee
The guarantee trustee, except if we default under the exchange guarantee,
will undertake to perform only such duties as are specifically set forth in the
exchange guarantee and, in case a default with respect to the exchange guarantee
has occurred, must exercise the same degree of care and skill as a prudent
person would exercise or use in the conduct of his or her own affairs. Subject
to this provision, the guarantee trustee will not be obligated to exercise any
of the powers vested in it by the exchange guarantee at the request of any
holder of the exchange capital securities unless it is offered reasonable
indemnity against the costs, expenses and liabilities that it might incur.
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DESCRIPTION OF ORIGINAL SECURITIES
We refer to the original capital securities, the original guarantee and the
original junior subordinated debentures collectively as the original securities
and refer to the exchange capital securities, the exchange guarantee and the
exchange debentures collectively as the exchange securities.
The terms of the original securities are identical in all materials
respects to the exchange securities, except that:
. original securities have not been registered under the Securities Act,
are subject to certain restrictions on transfer and are entitled to
certain rights under the applicable registration rights agreement,
which rights will terminate upon consummation of the exchange offer,
except under limited circumstances;
. the exchange capital securities will not provide for any increase in
the distribution rate; and
. the exchange debentures will not provide for any liquidated damages.
The original securities provide that, if a registration statement relating
to the exchange offer is not declared effective by the Commission on or prior to
the 180th day after the issue date, liquidated damages shall accrue on the
principal amount of the original junior subordinated debentures, and additional
distributions shall accumulate on the liquidation amount of the original capital
securities, each at a rate of 25 basis points per annum. In addition, the
original capital securities provide that, if the Trust has not exchanged
exchange capital securities for all original capital securities validly tendered
by the 45th day after the date on which the registration statement is declared
effective, the distribution rate borne by the original capital securities will
increase by 25 basis points per annum for the period from the occurrence of such
event until such time as the exchange offer has been consummated. The exchange
securities are not, and upon consummation of the exchange offer, the original
securities will not be, entitled to any such additional interest or
distributions. Accordingly, holders of original capital securities should review
the information set forth under "Risk Factors -- Your failure to exchange
original capital securities may adversely affect your ability to sell such
securities" and "Description of Exchange Capital Securities."
RELATIONSHIP AMONG THE EXCHANGE CAPITAL SECURITIES, THE
EXCHANGE DEBENTURES AND THE EXCHANGE GUARANTEE
Full and Unconditional Guarantee
We will irrevocably guarantee payments of distributions and other amounts
due on the exchange capital securities to the extent the Trust has funds legally
available to pay such amounts as and to the extent set forth under "Description
of Exchange Guarantee." Taken together, our obligations under the exchange
debentures, the indenture, the trust agreement and the exchange guarantee will
provide a full, irrevocable and unconditional guarantee of the Trust's payments
of distributions and other amounts due on the exchange capital securities. No
single document standing alone or operating in conjunction with fewer than all
of the other documents constitutes this guarantee. Only the combined operation
of these documents effectively provides a full, irrevocable and unconditional
guarantee of the Trust's obligations under the exchange capital securities.
If and to the extent that we do not make the required payments on the
exchange debentures, the Trust will not have sufficient funds to make its
related payments, including distributions on the exchange capital securities.
Our guarantee will not cover any payments when the Trust does not have
sufficient funds legally available to make those payments. Your remedy, as a
holder of exchange capital securities, is to institute a direct action against
us. Our obligations under the exchange guarantee will be subordinate and junior
to all senior indebtedness.
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Sufficiency of Payments
As long as we pay the interest and other payments when due on the exchange
debentures, the Trust will have sufficient funds to cover distributions and
other payments due on the exchange capital securities, primarily because:
. the aggregate principal amount or prepayment price of the exchange
debentures will equal the aggregate liquidation amount or redemption
price, as applicable, of the trust securities;
. the interest rate and interest payment dates and other payment dates
on the exchange debentures will match the distribution rate and
distribution dates and other payment dates for the trust securities;
. as sponsor, we will pay for all and any costs, expenses and
liabilities of the Trust, except for the Trust's obligations to
holders of trust securities; and
. the trust agreement also provides that the Trust is not authorized to
engage in any activity that is not consistent with its limited
purposes.
Enforcement Rights of Holders of Exchange Capital Securities
You, as holder of exchange capital securities, may institute a legal
proceeding directly against us to enforce your rights under our 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 trust agreement. However, if
there are payment defaults under, or accelerations of, senior indebtedness, the
subordination provisions of the indenture provide that we cannot make payments
in respect of the exchange debentures until we have paid the senior indebtedness
in full or we have cured any payment default or a payment default has been
waived. Our failure to make required payments on exchange debentures would
constitute an event of default under the trust agreement.
Limited Purpose of the Trust
The exchange capital securities will represent beneficial interests in the
Trust, and the Trust exists for the sole purpose of issuing and selling the
trust securities and the common securities, using the proceeds from the sale of
the trust securities to acquire the original junior subordinated debentures,
exchanging the original capital securities and original junior subordinated
debentures in the exchange offer, and engaging in only those other activities
necessary, advisable or incidental thereto. A principal difference between the
rights of a holder of an exchange capital security and a holder of an exchange
debenture is that a holder of an exchange debenture will be entitled to receive
from us the principal of (and premium, if any) and interest on exchange
debentures held, while a holder of exchange capital securities is entitled to
receive distributions from the Trust (or, in certain circumstances, from us
under our guarantee) if and to the extent the Trust has funds legally available
to pay the distributions.
Rights Upon Dissolution
Unless the exchange debentures are distributed to holders of the exchange
capital securities, if the Trust is voluntarily or involuntarily dissolved,
wound-up or liquidated, after satisfying the liabilities owed to the Trust's
creditors as required by applicable law, the holders of the exchange capital
securities will be entitled to receive, out of assets held by the Trust, the
liquidation distribution in cash. See "Description of Exchange Capital
Securities -- Liquidation of the Trust and Distribution of Exchange Debentures."
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If we are voluntarily or involuntarily liquidated or bankrupted, the
property trustee, as holder of the exchange debentures, would be one of our
subordinated creditors, subordinated in right of payment to all senior
indebtedness, but entitled to receive payment in full of principal (and premium,
if any) and interest, before any of our stockholders receive payments or
distributions. Since we will be the guarantor under the exchange guarantee and
will agree to pay all costs, expenses and liabilities of the Trust (other than
the Trust's obligations to the holders of its exchange capital securities), the
positions of a holder of exchange capital securities and a holder of exchange
debentures relative to other creditors and to our stockholders in the event of
our liquidation or bankruptcy are expected to be substantially the same.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
General
In the opinion of Thacher Proffitt & Wood, special federal income tax
counsel to us and the Trust, the following describes the material federal income
tax consequences of the purchase, ownership and disposition of a capital
security.
This summary addresses the tax consequences only to a person that acquires
a capital security on its original issuance at its original price and that holds
the security as a capital asset. This summary does not address all tax
consequences that may be applicable to a beneficial owner of a capital security
and does not address the tax consequences to holders subject to special tax
regimes (like banks, thrifts, real estate investment trusts, regulated
investment companies, insurance companies, dealers in securities or currencies,
tax-exempt investors or persons that will hold a capital security as a position
in a "straddle," as part of a "synthetic security" or "hedge" or as part of a
"conversion transaction" or other integrated investment). This summary 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
apply to a capital security. Except as noted below in the discussion of Non-
U.S. Holders, this discussion is addressed to a U.S. Holder, which is defined as
a beneficial owner of a capital security that, for federal income tax purposes,
is (or is treated as):
. a citizen or individual resident of the United States;
. a corporation or partnership (or entity treated for federal income tax
purposes as a corporation or partnership) created or organized in or
under the laws of the United States or any state (including the
District of Columbia) or other political subdivision thereof;
. an estate the income of which is includible in gross income for
federal income tax purposes without regarding to its source; or
. a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or
more U.S. persons have the ability to control all substantial
decisions of the trust.
This summary does not address the tax consequences to any stockholder,
partner or beneficiary of a holder of a capital security. This summary is based
on the Code, Treasury regulations thereunder and the administrative and judicial
interpretations thereof, as of the date hereof, all of which are subject to
change, possibly on a retroactive basis. An opinion of Thacher Proffitt & Wood
is not binding on the IRS or the courts. No rulings have been or are expected
to be sought from the IRS with respect to any of the matters described in this
prospectus. We can give no assurance that the opinions expressed will not be
challenged by the IRS or, if challenged, that the challenge will not be
successful.
Prospective investors are advised to consult with their own tax advisors
with respect to the tax consequences to them of the purchase, ownership and
disposition of the capital securities, including the tax
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consequences under state, local, foreign, and other tax laws and possible
effects of changes in United States federal or other tax laws.
Exchange of Capital Securities
The exchange of the original capital securities for exchange capital
securities pursuant to the exchange offer should not be treated as an exchange
for federal income tax purposes and, therefore, should not be a taxable event to
holders for federal income tax purposes, because the exchange capital securities
should not be considered to differ materially in kind or extent from the
original capital securities and because the exchange will occur by operation of
the terms of the capital securities. If the exchange were treated as an
exchange for federal income tax purposes, such exchange should constitute a
recapitalization for federal income tax purposes. Accordingly, the exchange
capital securities should have the same issue price as the original capital
securities, and a holder should have the same adjusted tax basis and holding
period in the exchange capital securities as the holder had in the original
capital securities immediately before the exchange.
Classification of the Junior Subordinated Debentures
We intend to take the position that the junior subordinated debentures will
be classified for federal income tax purposes as our indebtedness. We, together
with the Trust and the holders of the capital securities (by acceptance of a
beneficial interest in a capital security) will agree to treat the junior
subordinated debentures as our indebtedness for all federal income tax purposes.
We cannot be sure that this position will not be challenged by the IRS or, if
challenged, that the challenge will not be successful. The remainder of this
discussion assumes that the junior subordinated debentures will be classified as
our indebtedness for federal income tax purposes.
Classification of the Trust
In connection with the issuance of the original capital securities, Thacher
Proffitt & Wood rendered its opinion that, under then current law and assuming
full compliance with the terms of the trust agreement and the indenture (and
certain other documents), and based on certain facts and assumptions contained
in that opinion, the Trust is classified for federal income tax purposes as a
grantor trust and not as an association taxable as a corporation. Accordingly,
for federal income tax purposes, the Trust is not subject to federal income tax,
and each holder of capital securities will be considered the owner of an
undivided interest in the junior subordinated debentures, and each holder will
be required to include in its gross income any interest (or accrued original
issue discount), with respect to its allocable share of the junior subordinated
debentures.
Interest Income and Original Issue Discount
Under the indenture, we have the right to defer the payment of interest on
the junior subordinated debentures at any time or from time to time for one or
more deferral periods not exceeding 10 consecutive semi-annual periods each,
provided that no deferral period shall end on a date other than an interest
payment date or extend beyond November 1, 2029. By reason of that right, the
Treasury regulations will subject the junior subordinated debentures to the
rules in the Code and Treasury regulations on debt instruments issued with
original issue discount, unless the indenture or junior subordinated debentures
contain terms or conditions that make the likelihood of exercise of the deferral
option remote. Under the Treasury regulations, a "remote" contingency that
stated interest will not be timely paid will be ignored in determining whether a
debt instrument is issued with original issue discount. Although the answer is
not clear, we believe that the likelihood that we would exercise our option to
defer payments of interest is remote since exercising that option would, among
other things, prevent us from declaring dividends on any class of our equity
securities. Accordingly, we intend to take the position that the junior
subordinated debentures will not be considered to be issued with original issue
discount and, accordingly, stated interest on the junior subordinated debentures
generally will be taxable to a holder as ordinary income at the time it is paid
or accrued in accordance with such holder's method of accounting.
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Under the Treasury regulations, if we were to exercise our option to defer
payments of interest, the junior subordinated debentures would at that time be
treated as issued with original issue discount, and all stated interest on the
junior subordinated debentures would thereafter be treated as original issue
discount as long as the junior subordinated debentures remain outstanding. If
this occurred, all of a holder's interest income with respect to the junior
subordinated debentures would thereafter be accounted for on an economic accrual
basis regardless of such holder's method of tax accounting, and actual
distributions of stated interest would not be reported as taxable income.
Consequently, a holder of a capital security would be required to include in
gross income original issue discount even though we would not make actual cash
payments during a deferral period. The amount of such includible original issue
discount could be significant. Also, under the Treasury regulations, if the
option to defer the payment of interest were determined not to be remote, the
junior subordinated debentures would be treated as having been originally issued
with original issue discount. In such event, a holder would be required to
include in gross income an amount of original issue discount each taxable year
that approximates the amount of interest that accrues on the junior subordinated
debentures at the stated interest rate, regardless of such holder's method of
tax accounting, and actual cash payments of interest on the junior subordinated
debenture would not be separately includible in gross income. These Treasury
regulations have not yet been addressed in any rulings or other interpretations
by the IRS, and it is possible that the IRS could take a position contrary to
the interpretation described in this prospectus.
Because income on the capital securities will constitute interest or
original issue discount, corporate holders of the capital securities will not be
entitled to a dividends-received deduction with respect to any income recognized
with respect to the capital securities.
Receipt of Junior Subordinated Debenture or Cash upon Liquidation of the Trust
We will have the right at any time to liquidate the Trust and cause the
junior subordinated debentures to be distributed to the holders of the trust
securities. Under current law, the liquidation of the Trust and the
distribution of the junior subordinated debentures to trust security holders,
for federal income tax purposes, would be treated as a nontaxable event to each
holder, and the aggregate tax basis in the junior subordinated debentures
received by such holder would be equal to the holder's aggregate tax basis in
its capital securities surrendered. A holder's holding period in the junior
subordinated debentures received in liquidation of the Trust would be the same
as the holding period that the holder had in the capital securities surrendered.
The junior subordinated debentures may be prepaid in cash, and the proceeds
of that prepayment would be distributed to holders in redemption of their
capital securities. Under current law, that redemption would constitute, for
federal income tax purposes, a taxable disposition of the redeemed capital
securities, the tax consequences of which are described below under "-- Sales or
Redemptions of Capital Securities."
Sales or Redemptions of Capital Securities
On a sale or redemption of capital securities for cash, a holder will
recognize gain or loss equal to the difference between its adjusted tax basis in
the capital security and the amount realized on the sale or redemption of that
capital security. If the rules regarding original issue discount do not apply,
a holder's adjusted basis in a capital security generally will be its initial
purchase price, and if the holder uses an accrual method of accounting, the
holder's basis will be increased by any accrued but unpaid interest. If the
rules regarding original issue discount apply, a holder's adjusted basis in a
capital security generally will be its initial purchase price increased by any
original issue discount previously included in the holder's gross income to the
date of disposition and decreased by any payments received with respect to
original issue discount on the capital security. Gain or loss recognized on a
sale or redemption of a capital security will be capital gain or loss. Capital
gain recognized by an individual in respect of a capital security held for more
than one year as of the date of sale or redemption is subject to a maximum
federal income tax rate of 20 percent.
The capital securities may trade at a price that discounts any accrued but
unpaid interest on the junior subordinated debentures. Therefore, the amount
realized by a holder who disposes of a capital security between distribution
payment dates and whose adjusted basis in the capital security has been
increased by the
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amount of any accrued but unpaid original issue discount (or interest) may be
less than the holder's adjusted basis in the capital security. A holder's basis
in a capital security could be increased either under the rules regarding
original issue discount or, if those rules do not apply, in the case of a holder
that uses an accrual method of accounting, under the accrual accounting rules
(as discussed above). In that case, the holder will recognize a capital loss.
Subject to a limited exception in the case of individual taxpayers, capital
losses cannot be applied to offset ordinary income for federal income tax
purposes.
Non-U.S. Holders
For purposes of this discussion, a "Non-U.S. Holder" generally is any
corporation, individual, partnership, estate or trust that is not a U.S. Holder
for federal income tax purposes.
Under current federal income tax laws, subject to the discussion below of
backup withholding, payments by the Trust or any of its paying agents to a Non-
U.S. Holder will not be subject to federal withholding tax, provided that (a)
the Non-U.S. Holder does not own, actually or constructively, ten percent or
more of the total combined voting power of all classes of our stock entitled to
vote, (b) the Non-U.S. Holder is not a controlled foreign corporation that is
related to us through stock ownership, (c) the Non-U.S. Holder is not a bank
whose receipt of interest on the junior subordinated debentures is described in
Section 881(c)(3)(A) of the Code, and (d) either (A) the Non-U.S. Holder
certifies to the Trust or its agent, under penalties of perjury, that it is not
a U.S. Holder and provides its name and address or (B) a securities clearing
organization, bank or other financial institution that holds customers'
securities in the ordinary course of business (a "financial institution") and
holds the capital security in that capacity certifies to the Trust or its agent,
under penalties of perjury, that the statement has been received from the Non-
U.S. Holder by it or by a financial institution between it and the Non-U.S.
Holder and furnishes the Trust or its agent with a copy thereof. New Treasury
regulations provides alternative methods for satisfying the certification
requirements described in clause (d), effective for certain payments made after
December 31, 2000.
If a Non-U.S. Holder is engaged in a trade or business in the United States
and interest on the capital securities (or the junior subordinated debentures)
is effectively connected with the conduct of that trade or business, the Non-
U.S. Holder, although exempt from the withholding tax discussed above, will be
subject to federal income tax on that interest on a net income basis in
generally the same manner as if it were a U.S. Holder. In addition, if such
Non-U.S. Holder is a foreign corporation, it may be subject to a branch profits
tax equal to 30% of its effectively connected earnings and profits that are
repatriated or treated as repatriated. For this purpose, the interest income
would be included in the foreign corporation's earnings and profits. In the
case of a Non-U.S. Holder entitled to the benefits of a tax treaty with the
United States, the foregoing discussion generally applies only if the Non-U.S.
Holder is engaged in business in the United States through a U.S. permanent
establishment and the income on the junior subordinated debentures is
attributable to that permanent establishment within the meaning of the treaty,
and the rate of the branch profits tax may be limited to a rate prescribed by
the treaty for the withholding of tax on dividends. New final Treasury
regulations generally prescribe new methods for certifying that a Non-U.S.
Holder is exempt from the withholding of federal income tax by reason of being
engaged in trade or business or the United States.
Any gain recognized upon a sale or other disposition of capital securities
(or junior subordinated debentures) generally will not be subject to federal
income tax unless (1) the gain is, or is treated as, effectively connected with
a U.S. trade or business of the Non-U.S. Holder or (2) in the case of a Non-U.S.
Holder who is an individual, that individual is present in the United States for
183 days or more in the taxable year of the sale or other disposition, and
certain other conditions are met.
Backup Withholding Tax and Information Reporting
The amount of interest, including original issue discount, accrued on
capital securities held of record by U.S. persons (other than corporations and
other exempt holders) will be reported to the IRS. "Backup" withholding at a
rate of 31% will apply to payments of interest to non-exempt U.S. persons unless
the holder furnishes its taxpayer identification number in the manner prescribed
in applicable Treasury regulations,
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certifies that the number is correct, certifies as to no loss of exemption from
backup withholding and meets certain other conditions.
Payment of the proceeds from the disposition of capital securities to or
through the United States office of a broker is subject to information reporting
and backup withholding unless the holder or beneficial owner establishes an
exemption from information reporting and backup withholding.
Non-U.S. Holders are generally exempt from the information reporting and
backup withholding rules but may be required to comply with certain
certification and identification requirements to prove their exemption.
Any amount withheld from a holder under the backup withholding rules will
be allowed as a refund or credit against such holder's federal income tax
liability, provided the required information is furnished to the IRS.
It is anticipated that income on capital securities will be reported to
holders on Form 1099 (or any successor form) and mailed to holders of capital
securities by January 31 following each calendar year.
The 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. You should consult your tax adviser with respect to the tax
consequences to you of the purchase, ownership and disposition of a capital
security, including the tax consequences under state, local, foreign and other
tax laws and the possible effects of changes in federal or other tax laws.
ERISA CONSIDERATIONS
General
In evaluating the purchase of capital securities, a fiduciary of a
qualified profit-sharing, pension or stock bonus plan, including a plan for
self-employed individuals and their employees or any other employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), a collective investment fund or separate account in which such plans
invest and any other investor using assets that are treated as assets of an
employee benefit plan subject to ERISA (each, a "Plan" and collectively,
"Plans") should consider:
. whether the ownership of capital securities is in accordance with the
documents and instruments governing such Plan;
. whether the ownership of capital securities is solely in the interest
of Plan participants and beneficiaries and otherwise consistent with
the fiduciary's responsibilities and in compliance with the
requirements of Part 4 of Title I of ERISA, including, in particular,
the diversification, prudence and liquidity requirements of Section
404 of ERISA and the prohibited transaction provisions of Section 406
of ERISA and Section 4975 of the Code;
. whether the assets of the Trust are treated as assets of the Plan; and
. the need to value the assets of the Plan annually.
In addition, the fiduciary of an individual retirement arrangement under
408 of the Code (an "IRA") considering the purchase of capital securities should
consider whether the ownership of the capital securities would result in a non-
exempt prohibited transaction under Section 4975 of the Code.
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Governmental plans and certain church plans (each as defined under ERISA)
are not subject to the prohibited transaction rules. Such plans may, however,
be subject to federal, state or local laws or regulations which may affect their
investment in the capital securities. Any fiduciary of such a governmental or
church plan considering an investment in the capital securities should determine
the need for, and the availability, if necessary, of any exemptive relief under
such laws or regulations.
The fiduciary investment considerations summarized below provide a general
discussion that does not include all of the fiduciary investment considerations
relevant to Plans and, where indicated, IRAs. This summary is based on the
current provisions of ERISA and the Code and regulations and rulings thereunder,
and may be changed (perhaps adversely and with retroactive effect) by future
legislative, administrative or judicial action.
Plans and IRAs that are prospective purchasers of capital securities should
consult with and rely upon their own advisors in evaluating these matters in
light of their own particular circumstances.
Plan Asset Regulation
Under Department of Labor regulations governing what constitutes the assets
of a Plan or IRA ("Plan Assets") for purposes of ERISA and the related
prohibited transaction provisions of the Code (the "Plan Asset Regulation," 29
C.F.R. Sec. 2510.3-101), when a Plan or IRA acquires an equity interest in
another entity, and such interest does not represent a "publicly offered
security" nor a security issued by an investment company registered under the
1940 Act, the Plan's assets include both the equity interest and an undivided
interest in each of the underlying assets of the entity, unless it is
established either that the entity is an operating company or that equity
participation in the entity by "benefit plan investors," as defined in the Plan
Assets Regulation, is not "significant." For purposes of the Plan Asset
Regulation, the Trust will be neither an investment company nor an operating
company.
Under the Plan Asset Regulation, equity participation by benefit plan
investors will not be considered "significant" on any date only if immediately
after the most recent acquisition of the capital securities, the aggregate
interest in the capital securities held by benefit plan investors will be less
than 25% of the aggregate outstanding principal amount of the capital
securities. Although it is possible that the equity participation by benefit
plan investors on any date will not be "significant" for purposes of the Plan
Asset Regulation, such a result cannot be assured. Consequently, if Plans, IRAs
or investors using assets of Plans purchase the capital securities, the Trust's
assets could be deemed to be "plan assets" of such Plans and/or IRAs for
purposes of the fiduciary responsibility provisions of ERISA and the prohibited
transactions rules of ERISA and the Code. Under ERISA and the Code, any person
who exercises any authority or control respecting the management or disposition
of the assets of a Plan or IRA is considered to be a fiduciary of such Plan or
IRA. The property trustee of the Trust could therefore become a fiduciary of
the Plans and IRAs that invest in the capital securities and be subject to the
general fiduciary requirements of ERISA in exercising its authority with respect
to the management of the assets of the Trust. However, the property trustee
will have only limited discretionary authority with respect to the Trust assets
and the remaining functions and responsibilities performed by the property
trustee will be for the most part custodial and ministerial in nature.
Prohibited Transactions
The Trust, Astoria Financial (the obligor with respect to the junior
subordinated debentures held by the Trust) and their affiliates or the property
trustee may be a party in interest or a disqualified person with respect to a
Plan or IRA investing in the capital securities. Therefore, such investment by
a Plan or IRA may give rise to a prohibited transaction. Consequently, before
investing in the capital securities or acquiring junior subordinated debentures,
any person who is, or who is acquiring such securities for, or on behalf of, a
Plan or IRA should determine that either a statutory or an administrative
exemption from the prohibited transaction rules discussed below or otherwise
available is applicable to such investment in the capital securities, or that
such investment in, or acquisition of, such securities will not result in a non-
exempt prohibited transaction.
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The statutory or administrative exemptions from the prohibited transaction
rules under ERISA and the Code which may be available to a Plan or IRA, which is
investing in the capital securities include the following (collectively referred
to as the "ERISA Investor Exemptions"):
. Prohibited Transaction Class Exemption ("PTCE") 90-1, regarding
investments by insurance company pooled separate accounts;
. PTCE 91-38, regarding investments by bank collective investment funds;
. PTCE 84-14, regarding transactions effected by qualified professional
asset managers;
. PTCE 96-23, regarding transactions effected by in-house asset
managers; and
. PTCE 95-60, regarding investments by insurance company general
accounts.
No person who is, or who in acquiring capital securities is using the
assets of, a Plan or IRA may acquire capital securities unless one of the ERISA
Investor Exemptions or another applicable exemption is available to the Plan or
IRA, or such acquisition or holding of the capital securities will not result in
a non-exempt Prohibited Transaction. The acquisition of the capital securities
by any person who is, or who in acquiring such capital securities is using the
assets of, a Plan or IRA shall be deemed to constitute a representation by such
person to the property trustee of the Trust, Astoria Financial and the initial
purchaser either that:
. it is not a Plan, IRA, trustee or other person acting on behalf of a
Plan or IRA or other person or entity using the assets of any Plan or
IRA to finance such purchase; or
. such acquisition will not result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code for which there is no
applicable statutory or administrative exemption.
In the case of capital securities delivered in certificated form, the
purchaser will be required to make such representation, in writing, to the
trustee of the Trust, Astoria Financial and the initial purchaser.
The discussion of ERISA in this prospectus is general in nature and is not
intended to be all inclusive. Any fiduciary of a plan, IRA, governmental plan
or church plan considering an investment in the capital securities should
consult with its legal advisors regarding the consequences of such investment
and consider whether the Plan or IRA can make the representations noted above.
Further, the sale of investments to Plans and IRAs is in no respect a
representation by the Trust, Astoria Financial, the property trustee, the
initial purchaser or any other person associated with the sale of the capital
securities that such securities meet all relevant legal requirements with
respect to investments by Plans and IRAs generally or any particular Plan, or
that such securities are otherwise appropriate for Plans and IRAs generally or
any particular Plan.
Any purchaser proposing to acquire capital securities with assets of any
Plan or IRA should consult with its counsel.
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PLAN OF DISTRIBUTION
Each broker-dealer that receives exchange capital securities for its own
account pursuant to the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such exchange capital securities.
This prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of exchange capital
securities received in exchange for original capital securities where such
original capital securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Trust and us have
agreed that, starting on the expiration date and ending on the close of business
on the 90th day following the expiration date, it will make this prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, for a period of 90 days after the expiration
date, all dealers effecting transactions in the exchange securities may be
required to deliver a prospectus.
The Trust and us will not receive any proceeds from any sale of exchange
capital securities by broker-dealers. Exchange capital securities received by
broker-dealers for their own account pursuant to the exchange offer may be sold
from time to time in one or more transactions, in the over-the-counter market,
in negotiated transactions, through the writing of options on the exchange
capital securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker- dealer and/or the
purchasers of any such exchange capital securities. Any broker-dealer that
resells exchange capital securities that were received by it for its own account
pursuant to the exchange offer and any broker or dealer that participates in a
distribution of such exchange capital securities may be deemed to be an
underwriter within the meaning of the Securities Act and any profit of any such
resale of exchange capital securities and any commissions or concessions
received by any such persons may be deemed to be underwriting compensation under
the Securities Act. The letter of transmittal states that by acknowledging that
it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an underwriter within the meaning of the Securities
Act.
For a period of 90 days after the expiration date, the Trust and us will
promptly send additional copies of this prospectus and any amendment or
supplement to this prospectus to any broker-dealer that requests such documents
in the letter of transmittal. The Trust and us have agreed to pay all expenses
incident to the exchange offer, including the expenses of one counsel for the
holders of the capital securities, other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the exchange capital
securities, including any broker-dealers, against certain liabilities, including
liabilities under the Securities Act.
LEGAL MATTERS
The validity of the exchange capital securities, the exchange guarantee and
the exchange debentures will be passed upon for us by Thacher Proffitt and Wood.
Certain matters of Delaware law relating to the validity of the exchange capital
securities will be passed upon on behalf of us and the Trust by Morris, James,
Hitchens & Williams LLP, special Delaware counsel to the Trust and us.
RATINGS
The exchange capital securities have been rated "BB" by Standard & Poor's,
"BBB-" by Duff & Phelps Credit Rating Co., "BBB-" by Thomson Financial BankWatch
and "ba2" by Moody's Investors Service. The ratings of Standard & Poor's, Duff
& Phelps, Thomson Financial and Moody's assigned to the exchange capital
securities address the likelihood of your receipt of all payments to which such
securities are entitled. The rating process addresses the structural and legal
aspects associated with the exchange capital securities. In the event that the
ratings initially assigned to the exchange capital securities are subsequently
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lowered for any reason, no person or entity is obligated to provide any
additional credit support or credit enhancement with respect to the exchange
capital securities.
If another rating agency were to rate the exchange capital securities, such
rating agency may assign a rating different from the ratings described above.
Each security rating should be evaluated independently of any other security
rating. A security rating is not a recommendation to buy, sell or hold
securities and may be subject to revision or withdrawal at any time by the
assigning rating organization.
EXPERTS
The consolidated financial statements of Astoria Financial Corporation as
of December 31, 1998 and 1997, and for each of the years in the three-year
period ended December 31, 1998, have been incorporated by reference herein and
in the Registration Statement in reliance upon the report of KPMG LLP, our
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>
<S> <C>
======================================================== ==================================================
You should rely only on the information
contained in this prospectus or that to which we $125,000,000
have referred you. We have not authorized anyone
to provide you with any additional or different
information. This prospectus does not constitute an
offer to sell, or the solicitation of an offer to buy, Astoria Capital Trust I
any of the securities offered hereby to any person
in any jurisdiction in which such offer or
solicitation would be unlawful. The affairs of
Astoria Financial or the Trust may change after Offer to Exchange its
the date of this prospectus. Delivery of this 9.75% Capital Securities, Series B
prospectus and the sales of securities made (liquidation amount $1,000
hereunder does not mean otherwise. per exchange capital security)
which have been registered under the
Securities Act of 1933
for any and
all of its outstanding
------------------- 9.75% Capital Securities, Series A
(liquidation
TABLE OF CONTENTS amount $1,000
Page per original capital security)
---- Fully and unconditionally
guaranteed, as described
Available Information 2 herein this offering
Incorporation of Certain Documents by Reference 2 memorandum, by
Forward Looking Statements 3
Summary 4
Selected Financial Data 12 [AFC LOGO]
Recent Developments 16
Risk Factors 20
Use of Proceeds 27
Accounting Treatment 27
Capitalization 28
Astoria Financial Corporation 29 PROSPECTUS
Regulation and Supervision 30
Astoria Capital Trust I 31
The Exchange Offer 32
Description of Exchange Capital Securities 42
Description of Exchange Debentures 56
Description of Exchange Guarantee 69
Description of Original Securities 72
Relationship among the Exchange Capital Securities,
the Exchange Debentures and the Exchange , 2000
Guarantee 72
Certain Federal Income Tax Consequences 74
Erisa Considerations 78
Plan of Distribution 81
Legal Matters 81
Ratings 81
Experts 82
======================================================== ==================================================
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law ("DGCL"), inter alia,
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 (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding. If he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interest of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Similar indemnity is authorized for such person against expenses (including
attorneys' fees) actually and reasonably incurred in connection with the defense
or settlement of any such threatened, pending or completed action or suit if
such person acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the corporation, and provided
further that (unless a court of competent jurisdiction otherwise provides) such
person shall not have been adjudged liable to the corporation. Any such
indemnification may be made only as authorized in each specific case upon a
determination by the shareholders or disinterested directors or by independent
legal counsel in a written opinion that indemnification is proper because the
indemnitee has met the applicable standard of conduct.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
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 corporation
would otherwise have the power to indemnify him under Section 145.
Article X of the Registrant's Certificate of Incorporation requires the
Company, among other things, to indemnify to the fullest extent permitted by the
DGCL, any person who is or was or has agreed to become a director or officer of
the Registrant, who was or is made a party to, or is threatened to be made a
party to, or has become a witness in, any threatened, pending or completed
action, suit or proceeding, including actions or suits by or in the right of the
Registrant, by reason of such agreement or service or the fact that such person
is, was or has agreed to serve as a director, officer, employee or agent of
another corporation or organization at the request of the Registrant.
Article X also empowers the Registrant to purchase and maintain insurance, at
its expense, to protect itself and its directors and officers, and those who
were or have agreed to become directors or officers, against any liability,
regardless of whether or not the Registrant would have the power to indemnify
those persons against such liability under the law or the provisions set forth
in the Certificate of Incorporation. The Registrant may also grant rights to
indemnification and to the advancement of expenses to its employees or agent to
the fullest extent permitted by the provisions of Article X.
<PAGE>
Article XI of the Registrant's Certificate of Incorporation provides that a
director shall not be personally liable to the Registrant or its shareholders
for damages for breach of his fiduciary duty as a director, except to the extent
such exemption from liability or limitation thereof is expressly prohibited by
the DGCL. If the DGCL is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Registrant shall be eliminated or limited to the fullest
extent permitted by the DGCL, as so amended.
In addition, the Registrant maintains a directors' and officers' liability
policy.
Item 21. Exhibits and Financial Statement Schedules.
The exhibits and financial statement schedules filed as a part of this
Registration Statement are as follows:
(a) List of Exhibits.
Exhibit No. Description
- ----------- -----------
4.1 Indenture between Astoria Financial Corporation and Wilmington Trust
Company, as Debenture Trustee, dated as of October 28, 1999, relating to
the Junior Subordinated Debentures.
4.2 Form of Certificate of Exchange Junior Subordinated Debentures (filed
as Exhibit A to Exhibit 4.1 of this registration statement).
4.3 Certificate of Trust of Astoria Capital Trust I, dated as of October
19, 1999.
4.4 Declaration of Trust of Astoria Capital Trust I, dated as of October
18, 1999.
4.5 Amended and Restated Declaration of Trust for Astoria Capital Trust I,
dated as of October 28, 1999.
4.6 Certificate of Common Securities of Astoria Capital Trust I.
4.7 Form of Exchange Capital Security Certificate for Astoria Capital Trust
I.
4.8 Common Securities Guarantee Agreement of Astoria Financial Corporation,
dated as of October 28, 1999.
4.9 Series A Capital Securities Guarantee Agreement of Astoria Financial
Corporation and Wilmington Trust Company, dated as of October 28, 1999.
4.10 Series B Capital Securities Guarantee Agreement of Astoria Financial
Corporation and Wilmington Trust Company.
4.11 Registration Rights Agreement among Astoria Financial Corporation,
Astoria Capital Trust I, and Sandler O'Neill & Partners, L.P., dated as
of October 25, 1999.
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4.12 Liquidated Damages Agreement among Astoria Financial Corporation,
Astoria Capital Trust I, and Sandler O'Neill & Partners, L.P., dated as
of October 25, 1999.
5.1 Opinion of Thacher Proffitt & Wood as to the validity of the securities
registered hereunder (including the consent of that firm).
8.1 Opinion of Thacher Proffitt & Wood as to certain federal income tax
matters (including the consent of that firm).
12.1 Computation of ratio of earnings to combined fixed charges (excluding
interest on deposits).
12.2 Computation of ratio of earnings to combined fixed charges (including
interest on deposits).
23.1 Consent of Thacher Proffitt & Wood (included as part of Exhibits 5.1
and 8.1).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (included in the signature page of this registration
statement).
25.1 Form T-1 Statement of Eligibility of Wilmington Trust Company to act as
trustee for the Exchange Capital Securities of Astoria Capital Trust I.
25.2 Form T-1 Statement of Eligibility of Wilmington Trust Company to act as
trustee for the Exchange Junior Subordinated Debentures of Astoria
Financial Corporation (Exhibits A-D filed as Exhibits A-D of Exhibit
25.1 hereto).
25.3 Form T-1 Statement of Eligibility of Wilmington Trust Company to act as
trustee for the Astoria Financial Corporation Exchange Guarantee with
respect to Exchange Capital Securities (Exhibits A-D filed as Exhibits
A-D of Exhibit 25.1 hereto).
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
99.3 Form of Exchange Agent Agreement of Astoria Capital Trust I and
Wilmington Trust Company.
99.4 Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.
99.5 Form of Client Letter.
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Item 22. Undertakings.
The undersigned Registrant hereby undertakes:
(A)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(B) For purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be
deemed 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.
(C) To respond to requests for information that is incorporated by
reference into the Joint Proxy Statement-Prospectus pursuant to Item
4, 10(b), 11, or 13 of this form, within one business day of receipt
of such request, and to send the incorporated documents by first class
mail or other equally prompt means. This includes information
contained in documents filed subsequent to the effective date of the
registration statement through the date of responding to the request.
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(D) To supply by means of a post-effective amendment all information
concerning a transaction, and the Registrant being acquired involved
therein, that was not the subject of and included in the registration
statement when it became effective.
Insofar as indemnification by the Registrant for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant 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.
II-5
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrants have duly caused this Registration Statement on Form S-4 to be
signed on their behalf by the undersigned, thereunto duly authorized, in the
town of Lake Success in the State of New York, on February 18, 2000.
Astoria Financial Corporation
/s/ George L. Engelke, Jr.
-----------------------------------------
By: George L. Engelke, Jr.
Chairman of the Board, President and
Chief Executive Officer
Astoria Capital Trust I
/s/ Monte N. Redman
-----------------------------------------
By: Monte N. Redman
Administrative Trustee
/s/ Frank E. Fusco
-----------------------------------------
By: Frank E. Fusco
Administrative Trustee
/s/ Thomas E. Lavery
-----------------------------------------
By: Thomas E. Lavery
Administrative Trustee
<PAGE>
POWER OF ATTORNEY
-----------------
We, the undersigned directors and officers of Astoria Financial
Corporation, do hereby severally constitute and appoint Alan P. Eggleston our
true and lawful attorney and agent, to do any and all things and acts in our
names in the capacities indicated below and to execute any all instruments for
us and in our names in the capacities indicated below which said person may deem
necessary or advisable to enable Astoria Financial Corporation to comply with
the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with the
offering contemplated by this Registration Statement on Form S-4, including
specifically, but not limited to, power and authority to sign for us or any of
us in our names in the capacities indicated below and any and all amendments,
including post-effective amendments to this Registration Statement and any Rule
462(b) registration statement or amendments thereto; and we hereby ratify and
confirm all that said person shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Name Date
---- ----
/s/ George L. Engelke, Jr. February 18, 2000
- -----------------------------------------
George L. Engelke, Jr.
Chairman of the Board, President and Chief Executive Officer
(principal executive officer)
/s/ John J. Conefry, Jr. February 18, 2000
- -----------------------------------------
John J. Conefry, Jr.
Vice Chairman and Director
/s/ Gerald C. Keegan February 18, 2000
- -----------------------------------------
Gerard C. Keegan
Vice Chairman, Chief Administrative Officer and Director
/s/ Monte N. Redman February 18, 2000
- -----------------------------------------
Monte N. Redman
Executive Vice President and Chief Financial Officer
(principal financial and accounting officer)
/s/ Andrew M. Burger February 18, 2000
- -----------------------------------------
Andrew M. Burger
Director
/s/ Denis J. Connors February 18, 2000
- -----------------------------------------
Denis J. Connors
Director
<PAGE>
/s/ Robert J. Conway February 18, 2000
- -----------------------------------------
Robert J. Conway
Director
/s/ Thomas J. Donahue February 18, 2000
- -----------------------------------------
Thomas J. Donahue
Director
/s/ William J. Fendt February 18, 2000
- -----------------------------------------
William J. Fendt
Director
/s/ Ralph F. Palleschi February 18, 2000
- -----------------------------------------
Ralph F. Palleschi
Director
/s/ Lawrence W. Peters February 18, 2000
- -----------------------------------------
Lawrence W. Peters
Director
/s/ Thomas V. Powderly February 18, 2000
- -----------------------------------------
Thomas V. Powderly
Director
/s/ Leo J. Waters February 18, 2000
- -----------------------------------------
Leo J. Waters
Director
/s/ Donald D. Wenk February 18, 2000
- -----------------------------------------
Donald D. Wenk
Director
<PAGE>
EXHIBIT INDEX
Description
-----------
4.1 Indenture between Astoria Financial Corporation and Wilmington Trust
Company, as Debenture Trustee, dated as of October 28, 1999, relating to
the Junior Subordinated Debentures.
4.2 Form of Certificate of Exchange Junior Subordinated Debentures (filed
as Exhibit A to Exhibit 4.1 of this registration statement).
4.3 Certificate of Trust of Astoria Capital Trust I, dated as of October
19, 1999.
4.4 Declaration of Trust of Astoria Capital Trust I, dated as of October
18, 1999.
4.5 Amended and Restated Declaration of Trust for Astoria Capital Trust I,
dated as of October 28, 1999.
4.6 Certificate of Common Securities of Astoria Capital Trust I.
4.7 Form of Exchange Capital Security Certificate for Astoria Capital Trust
I.
4.8 Common Securities Guarantee Agreement of Astoria Financial Corporation,
dated as of October 28, 1999.
4.9 Series A Capital Securities Guarantee Agreement of Astoria Financial
Corporation and Wilmington Trust Company, dated as of October 28, 1999.
4.10 Series B Capital Securities Guarantee Agreement of Astoria Financial
Corporation and Wilmington Trust Company.
4.11 Registration Rights Agreement among Astoria Financial Corporation,
Astoria Capital Trust I, and Sandler O'Neill & Partners, L.P., dated as
of October 25, 1999.
4.12 Liquidated Damages Agreement among Astoria Financial Corporation,
Astoria Capital Trust I, and Sandler O'Neill & Partners, L.P., dated as
of October 25, 1999.
5.1 Opinion of Thacher Proffitt & Wood as to the validity of the securities
registered hereunder (including the consent of that firm).
8.1 Opinion of Thacher Proffitt & Wood as to certain federal income tax
matters (including the consent of that firm).
12.1 Computation of ratio of earnings to combined fixed charges (excluding
interest on deposits).
12.2 Computation of ratio of earnings to combined fixed charges (including
interest on deposits).
23.1 Consent of Thacher Proffitt & Wood (included as part of Exhibits 5.1
and 8.1).
23.2 Consent of KPMG LLP.
<PAGE>
24.1 Power of Attorney (included in the signature page of this registration
statement).
25.1 Form T-1 Statement of Eligibility of Wilmington Trust Company to act as
trustee for the Exchange Capital Securities of Astoria Capital Trust I.
25.2 Form T-1 Statement of Eligibility of Wilmington Trust Company to act as
trustee for the Exchange Junior Subordinated Debentures of Astoria
Financial Corporation (Exhibits A-D filed as Exhibits A-D of Exhibit
25.1 hereto).
25.3 Form T-1 Statement of Eligibility of Wilmington Trust Company to act as
trustee for the Astoria Financial Corporation Exchange Guarantee with
respect to Exchange Capital Securities (Exhibits A-D filed as Exhibits
A-D of Exhibit 25.1 hereto).
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
99.3 Form of Exchange Agent Agreement of Astoria Capital Trust I and
Wilmington Trust Company.
99.4 Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.
99.5 Form of Client Letter.
<PAGE>
EXHIBIT 4.1
- --------------------------------------------------------------------------------
ASTORIA FINANCIAL CORPORATION
-----------------------------------------------------
-----------------------------------------------------
INDENTURE
Dated as of October 28, 1999
-----------------------------------------------------
WILMINGTON TRUST COMPANY,
as Debenture Trustee
-----------------------------------------------------
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
<S> <C>
SECTION 1.01 Definitions.........................................................................................1
SECTION 1.02 Business Day Certificate...........................................................................10
ARTICLE II
SECURITIES
SECTION 2.01 Forms Generally....................................................................................10
SECTION 2.02 Execution and Authentication.......................................................................10
SECTION 2.03 Form and Payment...................................................................................11
SECTION 2.04 Legends............................................................................................11
SECTION 2.05 Global Security....................................................................................11
SECTION 2.06 Interest...........................................................................................13
SECTION 2.07 Transfer and Exchange..............................................................................13
SECTION 2.08 Replacement Securities.............................................................................15
SECTION 2.09 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 CORPORATION
SECTION 3.01 Payment of Principal and Interest..................................................................17
SECTION 3.02 Offices for Notices and Payments, etc..............................................................17
SECTION 3.03 Appointments to Fill Vacancies in Debenture Trustee's Office.......................................18
SECTION 3.04 Provision as to Paying Agent.......................................................................18
SECTION 3.05 Certificate to Debenture Trustee...................................................................19
SECTION 3.06 Compliance with Consolidation Provisions...........................................................19
SECTION 3.07 Limitation on Dividends............................................................................19
SECTION 3.08 Covenants as to Astoria Capital Trust I............................................................20
SECTION 3.09 Payment of Expenses................................................................................20
SECTION 3.10 Payment Upon Resignation or Removal................................................................21
ARTICLE IV
LIST OF SECURITYHOLDERS AND REPORTS BY THE
CORPORATION AND THE DEBENTURE TRUSTEE
SECTION 4.01 List of Securityholders............................................................................21
SECTION 4.02 Preservation and Disclosure of Lists...............................................................21
SECTION 4.03 Reports by the Corporation.........................................................................23
SECTION 4.04 Reports by the Debenture Trustee...................................................................23
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
ARTICLE V
REMEDIES OF THE DEBENTURE TRUSTEE AND
SECURITYHOLDERS UPON EVENT OF DEFAULT
<S> <C>
SECTION 5.01 Events of Default..................................................................................24
SECTION 5.02 Payment of Securities on Default; Suit Therefor....................................................26
SECTION 5.03 Application of Moneys Collected by Debenture Trustee...............................................27
SECTION 5.04 Proceedings by Securityholders.....................................................................28
SECTION 5.05 Proceedings by Debenture Trustee...................................................................29
SECTION 5.06 Remedies Cumulative and Continuing.................................................................29
SECTION 5.07 Direction of Proceedings and Waiver of Defaults by Majority of
Securityholders....................................................................................29
SECTION 5.08 Notice of Defaults.................................................................................30
SECTION 5.09 Undertaking to Pay Costs...........................................................................30
ARTICLE VI
CONCERNING THE DEBENTURE TRUSTEE
SECTION 6.01 Duties and Responsibilities of Debenture Trustee...................................................31
SECTION 6.02 Reliance on Documents, Opinions, etc...............................................................32
SECTION 6.03 No Responsibility for Recitals, etc................................................................33
SECTION 6.04 Debenture Trustee, Authenticating Agent, Paying Agents, Transfer Agents
and Registrar May Own Securities...................................................................34
SECTION 6.05 Moneys to be Held in Trust.........................................................................34
SECTION 6.06 Compensation and Expenses of Debenture Trustee.....................................................34
SECTION 6.07 Officers' Certificate as Evidence..................................................................35
SECTION 6.08 Conflicting Interest of Debenture Trustee..........................................................35
SECTION 6.09 Eligibility of Debenture Trustee...................................................................35
SECTION 6.10 Resignation or Removal of Debenture Trustee........................................................36
SECTION 6.11 Acceptance by Successor Debenture Trustee..........................................................37
SECTION 6.12 Succession by Merger, etc..........................................................................38
SECTION 6.13 Limitation on Rights of Debenture Trustee as a Creditor............................................38
SECTION 6.14 Authenticating Agents..............................................................................38
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01 Action by Securityholders..........................................................................39
SECTION 7.02 Proof of Execution by Securityholders..............................................................40
SECTION 7.03 Who Are Deemed Absolute Owners.....................................................................40
SECTION 7.04 Securities Owned by Corporation Deemed Not Outstanding.............................................40
SECTION 7.05 Revocation of Consents; Future Holders Bound.......................................................41
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
ARTICLE VIII
MEETINGS OF SECURITYHOLDERS
<S> <C>
SECTION 8.01 Purposes of Meetings...............................................................................41
SECTION 8.02 Call of Meetings by Debenture Trustee..............................................................42
SECTION 8.03 Call of Meetings by Corporation or Securityholders.................................................42
SECTION 8.04 Qualifications for Voting..........................................................................42
SECTION 8.05 Regulations........................................................................................42
SECTION 8.06 Voting.............................................................................................43
ARTICLE IX
AMENDMENTS
SECTION 9.01 Without Consent of Securityholders.................................................................43
SECTION 9.02 With Consent of Securityholders....................................................................45
SECTION 9.03 Compliance with Trust Indenture Act; Effect of Supplemental Indentures.............................46
SECTION 9.04 Notation on Securities.............................................................................46
SECTION 9.05 Evidence of Compliance of Supplemental Indenture to be Furnished to
Debenture Trustee..................................................................................46
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER AND LEASE
SECTION 10.01 Corporation May Consolidate, etc., on Certain Terms...............................................46
SECTION 10.02 Successor Person to be Substituted for Corporation................................................47
SECTION 10.03 Opinion of Counsel to be Given Debenture Trustee..................................................48
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01 Discharge of Indenture............................................................................48
SECTION 11.02 Deposited Moneys and U.S. Government Obligations to be Held in Trust
by Debenture Trustee..............................................................................48
SECTION 11.03 Paying Agent to Repay Moneys Held.................................................................49
SECTION 11.04 Return of Unclaimed Moneys........................................................................49
SECTION 11.05 Defeasance Upon Deposit of Moneys or U.S. Government Obligations..................................49
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 Indenture and Securities Solely Corporate Obligations.............................................51
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Successors........................................................................................51
SECTION 13.02 Official Acts by Successor Corporation............................................................51
</TABLE>
-iii-
<PAGE>
<TABLE>
<S> <C>
SECTION 13.03 Surrender of Corporation Powers...................................................................51
SECTION 13.04 Addresses for Notices, etc........................................................................51
SECTION 13.05 Governing Law.....................................................................................52
SECTION 13.06 Evidence of Compliance with Conditions Precedent..................................................52
SECTION 13.07 Business Days.....................................................................................52
SECTION 13.08 Trust Indenture Act to Control....................................................................53
SECTION 13.09 Table of Contents, Headings, etc..................................................................53
SECTION 13.10 Execution in Counterparts.........................................................................53
SECTION 13.11 Separability......................................................................................53
SECTION 13.12 Assignment........................................................................................53
SECTION 13.13 Acknowledgment of Rights..........................................................................53
ARTICLE XIV
PREPAYMENT OF SECURITIES
SECTION 14.01 Special Event Prepayment..........................................................................54
SECTION 14.02 Optional Prepayment by Corporation................................................................54
SECTION 14.03 No Sinking Fund...................................................................................55
SECTION 14.04 Notice of Prepayment; Selection of Securities.....................................................55
SECTION 14.05 Payment of Securities Called for Prepayment.......................................................56
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01 Agreement to Subordinate..........................................................................57
SECTION 15.02 Default on Senior Indebtedness....................................................................57
SECTION 15.03 Liquidation; Dissolution; Bankruptcy..............................................................58
SECTION 15.04 Subrogation.......................................................................................59
SECTION 15.05 Debenture Trustee to Effectuate Subordination.....................................................60
SECTION 15.06 Notice by the Corporation.........................................................................60
SECTION 15.07 Rights of the Debenture Trustee; Holders of Senior Indebtedness...................................61
SECTION 15.08 Subordination May Not Be Impaired.................................................................61
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01 Extension of Interest Payment Period..............................................................62
SECTION 16.02 Notice of Extension...............................................................................62
</TABLE>
TESTIMONIUM
SIGNATURES
EXHIBIT A
-iv-
<PAGE>
Tie Sheet of provisions of Trust Indenture Act of 1939 with Indenture
dated as of October 28, 1999 between Astoria Financial Corporation and
Wilmington Trust Company, as Debenture Trustee:
<TABLE>
ACT SECTION INDENTURE SECTION
<S> <C>
310(a)(1) ........................................................................ 6.09
(a)(2) ............................................................... 6.09, 6.10, 6.11
310(a)(3) ........................................................................ N/A
(a)(4) ........................................................................ N/A
310(a)(5) ............................................................... 6.09, 6.10, 6.11
310(b) ........................................................................ 6.08
310(c) ........................................................................ N/A
311(a) ........................................................................ 6.13
311(b) ........................................................................ 6.13
311(c) ........................................................................ N/A
312(a) ..............................................................4.01(a) and 4.02(a)
312(b) .........................................................................4.02(b)
312(c) .........................................................................4.02(c)
313(a) ......................................................................... 4.04(a)
313(b)(1) .................................................................... 4.04(a)
313(b)(2) ......................................................................... 4.04(a)
313(c) ......................................................................... 4.04(a)
313(d) ......................................................................... 4.04(b)
314(a) .......................................................................3.05, 4.03
314(b) ........................................................................ N/A
314(c)(1) .................................................................. 6.07 and 13.06
314(c)(2) .................................................................. 6.07 and 13.06
314(c)(3) ....................................................................... N/A
314(d) ....................................................................... N/A
314(e) ......................................................................6.07, 13.06
314(f) ....................................................................... N/A
315(a)(c) and (d)...................................................................... 6.01
315(b) ....................................................................... 5.08
315(e) ....................................................................... 5.09
316(a)(1) ....................................................................... 5.07
316(a)(2) ....................................................................... N/A
316(a) last sentence................................................................... 9.02
316(b) ................................................................... 5.07 and 9.02
316(c) ................................................................... 7.01 and 9.02
317(a) ....................................................................... 5.05
317(b) ....................................................................... 6.05
318 ....................................................................... 13.08
</TABLE>
- ----------------
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
-v-
<PAGE>
THIS INDENTURE, dated as of October 28, 1999, between Astoria Financial
Corporation, a Delaware corporation (hereinafter called the "Corporation"), and
Wilmington Trust Company, a Delaware banking corporation, as debenture trustee
(hereinafter sometimes called the "Debenture Trustee").
W I T N E S S E T H :
In consideration of the premises, and the purchase of the Securities (as
defined below) by the holders thereof, the Corporation covenants and agrees with
the Debenture Trustee for the equal and proportionate benefit of the respective
holders from time to time of the Securities, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture shall have the respective meanings specified in this Section
1.01. All other terms used in this Indenture which are defined in the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), or which are by
reference therein defined in the Securities Act of 1933, as amended (the
"Securities Act"), shall (except as herein otherwise expressly provided or
unless the context otherwise requires) have the meanings assigned to such terms
in said Trust Indenture Act and in 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) Administrative Trustees; (v) Series A Capital
Securities; (vi) Series B Capital Securities; (vii) Direct Action; (viii) Series
A Capital Securities Guarantee; (ix) Series B Capital Securities Guarantee; (x)
Distributions; and (xi) Initial Purchaser. All accounting terms used herein and
not expressly defined shall have the meanings assigned to such terms in
accordance with generally accepted accounting principles, and the term
"generally accepted accounting principles" means such accounting principles as
are generally accepted 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 Sums" shall have the meaning set forth in Section 2.06(c).
"Adjusted Treasury Rate" means, with respect to any prepayment date
pursuant to Section 14.01, the rate per annum equal to (i) the yield, under the
heading which represents the average for the immediately prior week, appearing
in the most recently published statistical release designated "H.15 (519)" or
any successor publication which is published weekly by the Federal Reserve and
which establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury Constant Maturities,"
for the maturity corresponding to the Remaining Life (if no maturity is within
three months before or three months after the maturity corresponding to the
Remaining Life, yields for the two published maturities most closely
corresponding to the Remaining Life shall be determined, and the Adjusted
Treasury Rate shall be
<PAGE>
interpolated or extrapolated from such yields on a straight-line basis, rounding
to the nearest month) or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does not contain
such yields, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such prepayment date, in each case
calculated on the third Business Day preceding the prepayment date, plus: 270
basis points.
"Affiliate" shall have the meaning given to that term in Rule 405 under the
Securities Act or any successor rule thereunder.
"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 Corporation 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 Debenture
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
Corporation 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 Corporation 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 Debenture Trustee.
"Book-Entry Capital Securities" shall have the meaning set forth in Section
2.05(a)(i).
"Business Day" shall mean, with respect to any series of Securities, any
day other than a Saturday, a Sunday or a day on which banking institutions in
Wilmington, Delaware or New York, New York are authorized or required by law or
executive order to remain closed.
"Capital Securities" shall mean undivided beneficial interests in the
assets of the Trust which are designated as "Capital Securities" and rank pari
passu with the Common Securities issued by the Trust; provided, however, that if
-------- -------
an Event of Default has occurred and is continuing, no payments in respect of
Distributions on, or payments upon liquidation, redemption or otherwise with
-2-
<PAGE>
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. References to
"Capital Securities"' shall include collectively any Series A Capital Securities
and Series B Capital Securities.
"Capital Securities Guarantee" shall mean any guarantee agreement that the
Corporation may enter into with Wilmington Trust Company or other Persons that
operates directly or indirectly for the benefit of holders of Capital Securities
and shall include the Series A Capital Securities Guarantee and the Series B
Capital Securities Guarantee with respect to the Series A Capital Securities and
the Series B Capital Securities, respectively.
"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 the Trust which are designated as "Common Securities" and rank pari passu
with Capital Securities issued by the Trust; provided, however, that if an Event
-------- -------
of Default 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 then entitled.
"Common Securities Guarantee" shall mean any guarantee that the Corporation
may enter into that operates directly or indirectly for the benefit of holders
of Common Securities.
"Common Stock" shall mean the Common Stock, no par value per share, of the
Corporation 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.
"Comparable Treasury Issue" shall mean the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the Remaining
Life of the Securities that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the Remaining Life of the Securities,
provided that if no United States Treasury security has a maturity which is
within a period from three months before to three months after the Remaining
Life, the two most closely corresponding United States Treasury securities as
selected by the Quotation Agent shall be used as the Comparable Treasury Issue,
and the Adjusted Treasury Rate shall be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month, using such securities.
"Comparable Treasury Price" shall mean, with respect to any prepayment date
pursuant to Section 14.01, (i) the average of three Reference Treasury Dealer
Quotations for such prepayment date, after excluding the highest and lowest
Reference Treasury Dealer Quotations, or (ii) if the Quotation Agent obtains
fewer than five such Reference Treasury Dealer Quotations, the average of all
such Reference Treasury Dealer Quotations.
-3-
<PAGE>
"Compounded Interest" shall have the meaning set forth in Section 16.01.
"Corporation" shall mean the person identified as "corporation" in the
preamble to this Indenture and, subject to the provisions of Article X, shall
also include its successors and assigns.
"Corporation Request" or "Corporation Order" shall mean a written request
or order signed in the name of the Corporation by an Officer and delivered to
the Debenture Trustee.
"Custodian" shall mean any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debenture Trustee" shall mean the Person identified as "Debenture Trustee"
in the preamble to this Indenture and, subject to the provisions of Article VI
hereof, shall also include its successors and assigns.
"Declaration" shall mean the Amended and Restated Declaration of Trust of
the Trust, dated as of October 28, 1999, by and among the Trustees (as defined
therein), the Corporation, as sponsor, and the holders from time to time of
undivided beneficial interest in the assets of the Trust, as amended from time
to time.
"Default" shall mean any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulted Interest" shall have the meaning set forth in Section 2.11.
"Deferred Interest" shall have the meaning set forth in Section 16.01.
"Definitive Securities" shall mean those securities issued in fully
registered certificated form not otherwise in global form.
"Depositary" shall mean, with respect to the Securities for which the
Corporation shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, or another clearing
agency, or any successor registered as a clearing agency pursuant to Section 17A
of the Exchange Act or other applicable statute or regulation, which, in each
case, shall be designated by the Corporation pursuant to Section 2.05(d).
"Dissolution Event" shall mean any event resulting in the dissolution of
the 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 Trust pro rata in accordance with the Declaration.
"Event of Default" shall mean any event specified in Section 5.01,
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.
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"Exchange Offer" shall mean the offer that may be made pursuant to the
Registration Rights Agreement (i) by the Corporation to exchange the Exchange
Securities for the Initial Securities and to execute the Series B Capital
Securities Guarantee in respect of the Series B Capital Securities and (ii) by
the Trust to exchange the Series B Capital Securities for the Series A Capital
Securities.
"Exchange Securities" shall mean the Corporation's 9.75% Junior
Subordinated Deferrable Interest Debentures due November 1, 2029, Series B, as
authenticated and issued under this Indenture.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 16.01.
"Federal Reserve" shall mean the Board of Governors of the Federal Reserve
System.
"Global Security" shall mean, with respect to the Securities, a Security
executed by the Corporation and delivered by the Debenture Trustee to the
Depositary or pursuant to the Depositary's instruction, or if no instructions
are received then held by the Property Trustee, all in accordance with this
Indenture, which Security shall be registered in the name of the Depositary or
its nominee.
"Indebtedness" shall mean, whether recourse as to all or a portion of the
assets of the Corporation and whether or not contingent, (i) every obligation of
the Corporation for money borrowed; (ii) every obligation of the Corporation
evidenced by bonds, debentures, notes or other similar instruments, including
obligations incurred in connection with the acquisition of property, assets or
businesses; (iii) every reimbursement obligation of the Corporation with respect
to letters of credit, bankers' acceptances or similar facilities issued for the
account of the Corporation; (iv) every obligation of the Corporation issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of the Corporation; (vi) all
indebtedness of the Corporation, whether incurred on or prior to the date of
this Indenture or hereafter incurred, for claims in respect of derivative
products, including interest rate, foreign exchange rate and commodity forward
contracts, options and swaps and similar arrangements; and (vii) every
obligation of the type referred to in clauses (i) through (vi) of another Person
and all dividends of another Person the payment of which, in either case, the
Corporation has guaranteed or is responsible or liable for directly or
indirectly, as obligor or otherwise.
"Indebtedness Ranking on a Parity with the Securities" shall mean (i)
Indebtedness, whether outstanding on the date of execution of this Indenture or
hereafter created, assumed or incurred, to the extent such Indebtedness by its
terms ranks pari passu with and not prior or senior to the Securities in the
right of payment upon the happening of the dissolution, winding-up, liquidation
or reorganization of the Corporation and (ii) all other debt securities, and
guarantees in respect of those debt securities, issued to any trust other than
the Trust, or a trustee of such trust, partnership or other entity affiliated
with the Corporation, that is a financing vehicle of the Corporation (a
"financing entity") in connection with the issuance by such financing entity of
equity securities or other securities guaranteed by the Corporation pursuant to
an instrument that ranks pari passu with or junior in right of payment to the
Capital Securities Guarantee. The securing of any Indebtedness otherwise
constituting Indebtedness Ranking on a Parity with the Securities shall not be
deemed to prevent such Indebtedness from constituting Indebtedness Ranking on a
Parity with the Securities with respect to any assets of the Corporation not
securing such Indebtedness.
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"Indebtedness Ranking Junior to the Securities" shall mean any
Indebtedness, whether outstanding on the date of execution of this Indenture or
hereafter created, assumed or incurred, to the extent such Indebtedness by its
terms ranks junior to and not pari passu 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 the dissolution or winding-up or liquidation or
reorganization of the Corporation. The securing of any Indebtedness otherwise
constituting Indebtedness Ranking Junior to the Securities shall not be deemed
to prevent such Indebtedness from constituting Indebtedness Ranking Junior to
the Securities with respect to any assets of the Corporation not securing such
Indebtedness.
"Indenture" shall mean this instrument as originally executed or, if
amended as herein provided, as so amended.
"Initial Optional Redemption Date" shall mean November 1, 2009.
"Initial Securities" shall mean the Corporation's 9.75% Junior Subordinated
Deferrable Interest Debentures due November 1, 2029, Series A, as authenticated
and issued under this Indenture.
"Interest Payment Date" shall have the meaning set forth in Section
2.06(a).
"Investment Company" shall mean an investment company as defined in the
Investment Company Act.
"Investment Company Act" shall mean the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event" shall mean the receipt by the Corporation and
the Trust of an opinion of independent securities 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 any
applicable regulatory authority for the Corporation or (b) any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of original issuance
of the Initial Securities, the Trust is, or within 90 days of the date of such
opinion will be, considered an investment company that is required to be
registered under the Investment Company Act.
"Like Amount" shall mean (i) with respect to a redemption of the Trust
Securities, Trust Securities having a liquidation amount equal to the principal
amount of Securities to be paid in accordance with their terms and (ii) with
respect to a distribution of Securities upon the liquidation of the Trust,
Securities having a principal amount equal to the liquidation amount of the
Trust Securities of the holder to whom Securities are distributed.
"Liquidated Damages" shall have the meaning set forth in the Registration
Rights Agreement and the Liquidated Damages Agreement.
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"Liquidated Damages Agreement" shall mean the Liquidated Damages Agreement,
dated as of October 25, 1999, by and among the Corporation, the Trust and the
Initial Purchaser named therein, as such agreement may be amended, modified or
supplemented from time to time.
"Maturity Date" shall mean November 1, 2029.
"Non Book-Entry Capital Securities" shall have the meaning set forth in
Section 2.05(a)(ii).
"Officers" shall mean any of the Chairman, the Chief Executive Officer, the
President, an Executive or Senior Vice President, a Vice President, the Chief
Financial Officer, the Secretary or an Assistant Secretary of the Corporation.
"Officers' Certificate" shall mean a certificate signed by two Officers and
delivered to the Debenture Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel, who may be an
employee of the Corporation, and who shall be reasonably acceptable to the
Debenture Trustee.
"Optional Prepayment Price" shall have the meaning set forth in Section
14.02(a).
"Other Debentures" shall mean all junior subordinated debentures other than
the Securities issued by the Corporation from time to time and sold to trusts
other than the Trust to be established by the Corporation (if any), in each case
similar to the Trust.
"Other Guarantees" shall mean all guarantees other than the Capital
Securities Guarantee and the Common Securities Guarantee issued by the
Corporation with respect to preferred beneficial interests (if any) issued to
trusts other than the Trust to be established by the Corporation (if any), in
each case similar to the Trust.
The term "outstanding" when used with reference to the Securities, shall
mean, subject to the provisions of Section 7.04, as of any particular time, all
Securities authenticated and delivered by the Debenture Trustee or the
Authenticating Agent under this Indenture, except
(a) Securities theretofore canceled by the Debenture Trustee or the
Authenticating Agent or delivered to the Debenture 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 Debenture Trustee or with any paying agent (other
than the Corporation) or shall have been set aside and segregated
in trust by the Corporation (if the Corporation 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 set forth in Article XIV
or provision satisfactory to the Debenture Trustee shall have been
made for giving such notice; and
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(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to
the terms of Section 2.08 unless proof satisfactory to the
Corporation and the Debenture Trustee is presented that any such
Securities are held by bona fide holders in due course.
(d) Securities held by the Corporation and the Trust and any Affiliate
thereof.
"Person" shall mean any individual, corporation, estate, partnership, joint
venture, national banking association, 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 shall mean every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.08 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 Price" shall mean the Special Event Prepayment Price or
Optional Prepayment Price, as the context requires.
"Principal Office of the Debenture Trustee," or other similar term, shall
mean the office of the Debenture Trustee, at which at any particular time its
corporate trust business shall be administered.
"Purchase Agreement" shall mean the Purchase Agreement, dated October
25, 1999, by and among the Corporation, the Trust and the Initial Purchaser
named therein.
"Quotation Agent" shall mean the Reference Treasury Dealer appointed by the
Corporation.
"Reference Treasury Dealer" shall mean a nationally recognized U.S.
Government securities dealer in New York, New York selected by the Corporation.
"Reference Treasury Dealer Quotations" shall mean, with respect to each
Reference Treasury Dealer and any prepayment date pursuant to Section 14.01, the
average, as determined by the Quotation Agent, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Quotation Agent by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day
preceding such prepayment date.
"Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated as of October 25, 1999, by and among the Corporation, the Trust
and the Initial Purchaser named therein, as such agreement may be amended,
modified or supplemented from time to time.
"Regulatory Capital Event" shall mean the receipt by the Corporation and
the Trust of an opinion of independent bank regulatory counsel experienced in
such matters to the effect that as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws
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(or any regulations thereunder) of the United States or any rules, guidelines or
policies of an applicable regulatory authority for the Corporation or (b) any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of original
issuance of the Initial Securities, the Capital Securities do not constitute, or
within 90 days of the date of such opinion will not constitute, Tier 1 Capital
(or its then equivalent if the Corporation were subject to such capital
requirement) applied as if the Corporation (or its successors) were a bank
holding company for purposes of capital adequacy guidelines of the Federal
Reserve Board (or any successor regulatory authority with jurisdiction over bank
holding companies), or any capital adequacy guidelines as then in effect and
applicable to the Corporation; provided, however, that the distribution of the
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Securities in connection with the liquidation of the Trust by the Corporation
shall not in and of itself constitute a Regulatory Capital Event.
"Remaining Life" shall mean the term of the Securities from any prepayment
date pursuant to Section 14.01 to the Maturity Date.
"Responsible Officer" shall mean any officer of the Debenture Trustee's
Corporate Trust Administration department with direct responsibility for the
administration of the Indenture and also means, with respect to a particular
corporate trust matter, any other officer of the Debenture Trustee to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Restricted Security" shall mean Securities that bear or are required to
bear the legends relating to transfer restrictions under the Securities Act set
forth in Exhibit A hereto.
"Rule 144A" shall mean Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission.
"Securities" shall mean, collectively, the Initial Securities and the
Exchange Securities.
"Securityholder," "holder of Securities," or other similar terms, shall
mean any Person in whose name at the time a particular Security is registered in
the Security Register kept by the Corporation or the Debenture Trustee for that
purpose in accordance with the terms of this Indenture.
"Security Register" shall mean (i) prior to a Dissolution Event, the list
of holders provided to the Debenture Trustee pursuant to Section 4.01, and (ii)
following a Dissolution Event, any security register maintained by a security
registrar for the Securities appointed by the Corporation following the
execution of a supplemental indenture providing for transfer procedures as
provided for in Section 2.07(a).
"Senior Indebtedness" shall mean the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Corporation whether
or not such claim for post petition interest is allowed in such proceedings), on
all Indebtedness, whether outstanding on the date of execution of this
Indenture, or hereafter 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" shall mean an Investment Company Event, a Regulatory
Capital Event or a Tax Event, as the context requires.
"Special Event Prepayment Price" shall mean, with respect to any prepayment
of the Securities following a Special Event, an amount in cash equal to the
greater of (i) 100% of the principal amount of the Securities to be prepaid or
(ii) the sum, as determined by a Quotation Agent, of the present values of the
remaining scheduled payments of principal and interest on such Securities,
discounted to the prepayment date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus, in
the case of each of (i) and (ii), any accrued and unpaid interest thereon
(including Compounded Interest and Additional Sums, if any) to the date of such
prepayment.
"Subsidiary" shall mean with respect to any Person, (i) any corporation at
least a majority of the outstanding voting stock of which is owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries, (ii) any general partnership, joint
venture, limited liability company or similar entity, at least a majority of
whose outstanding partnership, membership or similar interests shall at the time
be owned by such Person or by one or more of its Subsidiaries, or by such Person
and one or more of its Subsidiaries and (iii) any limited partnership of which
such Person or any of its Subsidiaries is a general partner. For the purposes
of this definition, "voting stock" means shares, interests, participations or
other equivalents in the equity interest (however designated) in such Person
having ordinary voting power for the election of a majority of the directors (or
the equivalent) of such Person, other than shares, interests, participations or
other equivalents having such power only by reason of the occurrence of a
contingency.
"Tax Event" shall mean the receipt by the Trust and the Corporation of an
opinion of independent tax counsel experienced in such matters to the effect
that, 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 taxing authority thereof or therein, or
as a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after the date
of original issuance of the Initial Securities, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of the date
of such opinion, subject to United States federal income tax with respect to
income received or accrued on the Securities, (ii) the interest payable by the
Corporation on the Securities is not, or within 90 days of the date of such
opinion will not be, deductible by the Corporation, in whole or in part, for
United States federal income tax purposes or (iii) the Trust is, or will be
within 90 days of the date of such opinion, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
"Trust" shall mean Astoria Capital Trust I, a Delaware business trust
created for the purpose of issuing its undivided beneficial interests in
connection with the issuance of Securities under this Indenture.
"Trust Securities" shall mean, collectively, the Capital Securities and the
Common Securities.
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"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 prepayable 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 with respect to 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.
SECTION 1.02 Business Day Certificate.
On the date of execution and delivery of this Indenture (with respect to
the remainder of calendar year 1999) and within 15 days prior to the end of each
calendar year while this Indenture remains in effect (with respect to succeeding
calendar years), the Corporation shall deliver to the Debenture Trustee an
Officers' Certificate specifying the days on which banking institutions or trust
companies in Wilmington, Delaware or New York, New York are then authorized or
obligated by law or executive order to remain closed.
ARTICLE II
SECURITIES
SECTION 2.01 Forms Generally.
The Securities and the Debenture Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto, 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 rule,
agreements to which the Corporation is subject or usage. Each Security shall be
dated the date of its authentication.
SECTION 2.02 Execution and Authentication.
An Officer shall sign the Securities for the Corporation by manual or
facsimile signature. 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 the Debenture Trustee. The signature of the Debenture Trustee shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
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The Debenture Trustee shall, upon a Corporation Order, authenticate for
original issue up to, and the aggregate principal amount of Securities
outstanding at any time may not exceed, $128,866,000 aggregate principal amount
of the Securities, except as provided in Sections 2.07, 2.08, 2.09 and 14.05.
The series of Securities to be initially issued hereunder shall be the Initial
Securities.
SECTION 2.03 Form and Payment.
Except as provided in Section 2.05, the Securities shall be issued in
fully registered certificated form without interest coupons. Principal of and
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 Corporation maintained for such
purpose under Section 3.02; provided, however, that payments of interest may be
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made at the option of the Corporation (i) by check mailed to the holder at such
address as shall appear in the Security Register, or (ii) by transfer to an
account maintained by the Person entitled thereto, provided that proper transfer
instructions have been received in writing 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 and premium, if any, and
interest (including Compounded Interest and Additional Sums, if any) and
Liquidated Damages, 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 2.04 Legends
(a) Except as permitted by subsection (b) of this Section 2.04, or as
otherwise determined by the Corporation in accordance with applicable law, each
Security shall bear the applicable legends relating to restrictions on transfer
pursuant to the Securities Act and any other applicable securities laws in
substantially the form set forth on Exhibit A hereto.
(b) In the event of an Exchange Offer, the Corporation shall issue and
the Debenture Trustee, upon Corporation Order, shall authenticate Exchange
Securities in exchange for Initial Securities accepted for exchange in the
Exchange Offer, which Exchange Securities shall not bear the legends required by
subsection (a) above, in each case unless the holder of such Initial Securities
is either (A) a broker-dealer who purchased such Initial Securities directly
from the Corporation for resale pursuant to Rule 144A or any other available
exemption under the Securities Act, (B) a Person participating in the
distribution of the Initial Securities or (C) a Person who is an Affiliate of
the Corporation or the Trust.
SECTION 2.05 Global Security.
(a) In connection with a Dissolution Event,
(i) if any Capital Securities are held in book-entry form
("Book-Entry Capital Securities"), a Like Amount of Definitive Securities shall
be presented to the Debenture 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 2.07), to be registered in
the name of the Depositary, or its nominee, and delivered by the Debenture
Trustee to the Depositary
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for crediting to the accounts of its participants pursuant to the instructions
of the Administrative Trustees; the Corporation upon any such presentation shall
execute one or more Global Securities in such aggregate principal amount and
deliver the same to the Debenture 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 Debenture Trustee, by the
Property Trustee and any Capital Security certificates which represent Capital
Securities other than Book-Entry Capital Securities ("Non Book-Entry Capital
Securities") will be deemed to represent beneficial interests in Securities
presented to the Debenture 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 the Securities for transfer or reissuance, at which time
such Capital Security certificates will be canceled, and a Security in a Like
Amount, 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, will be executed by the Corporation and delivered to the Debenture
Trustee for authentication and delivery in accordance with this Indenture; and
upon the issuance of such Securities, Securities with an equivalent aggregate
principal amount that were presented by the Property Trustee to the Debenture
Trustee will be canceled.
(b) The Global Securities shall represent the aggregate amount of
outstanding Securities from time to time endorsed thereon; provided, however,
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that the aggregate principal amount of outstanding Securities represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and prepayments. Any endorsement of a Global Security to
reflect the amount of any increase or decrease in the aggregate principal amount
of outstanding Securities represented thereby shall be made by the Debenture
Trustee, in accordance with instructions given by the Corporation as required by
this Section 2.05.
(c) The Global Securities may be transferred, in whole but not in part,
only to the Depositary, to another nominee of the Depositary, or to a successor
Depositary selected or approved by the Corporation or to a nominee of such
successor Depositary.
(d) If at any time the Depositary notifies the Corporation that it is
unwilling or unable to continue as Depositary or the Depositary has ceased to be
a clearing agency registered under the Exchange Act, and, in each case, a
successor Depositary is not appointed by the Corporation within 90 days after
the Corporation receives such notice or becomes aware of such condition, as the
case may be, the Corporation will execute, and the Debenture Trustee, upon
receipt of a Corporation Order, 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 a Default or an Event of
Default, the Depositary shall have the right to exchange the Global Securities
for Definitive Securities. In addition, the Corporation 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
Corporation shall execute, and subject to Section 2.07, the Debenture Trustee,
upon receipt of an Officers' Certificate evidencing such determination by the
Corporation and a Corporation Order, will authenticate and make available for
delivery the Definitive Securities, in authorized
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denominations, and 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, in authorized
denominations, the Global Security shall be canceled by the Debenture 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 Debenture Trustee. The Debenture Trustee shall deliver such
Definitive Securities to the Depositary for delivery to the Persons in whose
names such Definitive Securities are so registered.
SECTION 2.06 Interest.
(a) Each Security will bear interest, at the rate of 9.75% 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
October 28, 1999, 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 semi-annually, payable (subject to
the provisions of Article XVI) semi-annually in arrears on May 1st and November
1st of each year, commencing May 1, 2000 (each, an "Interest Payment Date"), 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 15th day of the month immediately preceding the
month in which the relevant Interest Payment Date falls.
(b) The amount of interest payable on the Securities shall be computed
on the basis of a 360-day year of twelve 30-day months.
(c) During such time as the Property Trustee is the holder of any
Securities, the Corporation 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 Trust on the outstanding Trust Securities shall not be reduced as
a result of any additional taxes, duties and other governmental charges to which
the Trust has become subject as a result of a Tax Event ("Additional Sums").
SECTION 2.07 Transfer and Exchange.
(a) Transfer Restrictions.
(i) The Initial Securities, and those Exchange Securities with
respect to which any Person described in Section 2.04(b)(A), (B) or (C) is the
beneficial owner, may not be transferred except in compliance with the legend
contained in Exhibit A unless otherwise determined by the Corporation in
accordance with applicable law. Upon any distribution of the Securities
following a Dissolution Event, the Corporation and the Debenture Trustee shall
enter into a supplemental indenture pursuant to Section 9.01 to provide for the
transfer restrictions and procedures with respect to the Securities
substantially similar to those contained in the Declaration to the extent
applicable in the circumstances existing at such time.
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(ii) The Securities will be issued and may be transferred only
in blocks having an aggregate principal amount of not less than $100,000 and in
multiples of $1,000 in excess thereof. Any attempted transfer of the Securities
in a block having an aggregate principal amount of less than $100,000 shall be
deemed to be voided and of no legal effect whatsoever. Any such purported
transferee shall be deemed not to be a holder of such Securities for any
purpose, including, but not limited to the receipt of payments on such
Securities, and such purported transferee shall be deemed to have no interest
whatsoever in such Securities.
(b) General Provisions Relating to Transfers and Exchanges. To permit
registrations of transfers and exchanges, the Corporation shall execute and the
Debenture Trustee shall authenticate Definitive Securities and Global Securities
at the request of the security registrar for the Securities. All Definitive
Securities and Global Securities issued upon any registration of transfer or
exchange of Definitive Securities or Global Securities shall be the valid
obligations of the Corporation, 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 Corporation may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith.
The Corporation 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 nonprepaid portion of any Security being prepaid in part.
Prior to due presentment for the registration of a transfer of any
Security, the Debenture Trustee, the Corporation and any agent of the Debenture
Trustee or the Corporation may deem and treat the Person in whose name any
Security is registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and premium, if any, and interest on such
Securities, and none of the Debenture Trustee, the Corporation or any agents of
the Debenture Trustee or the Corporation shall be affected by notice to the
contrary.
(c) Exchange of Initial Securities for Exchange Securities. The
Initial Securities may be exchanged for Exchange Securities pursuant to the
terms of the Exchange Offer. The Debenture Trustee shall make the exchange as
follows:
The Corporation shall present the Debenture Trustee with an Officers'
Certificate certifying the following:
(A) upon issuance of the Exchange Securities, the transactions
contemplated by the Exchange Offer have been consummated; and
(B) the principal amount of Initial Securities properly tendered
in the Exchange Offer that are represented by a Global
Security, the principal amount of Initial Securities properly
tendered in the Exchange Offer that are represented by
Definitive Securities,
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the name of each holder of such Definitive Securities, the
principal amount properly tendered in the Exchange Offer by
each such holder and the name and address to which Definitive
Securities for Exchange Securities shall be registered and
sent for each such holder.
The Debenture Trustee, upon receipt of (i) such Officers' Certificate,
(ii) an Opinion of Counsel (x) to the effect that the Exchange Securities have
been registered under Section 5 of the Securities Act and the Indenture has been
qualified under the Trust Indenture Act and (y) with respect to the matters set
forth in Section 3(q) of the Registration Rights Agreement and (iii) a
Corporation Order, shall authenticate (A) a Global Security representing
Exchange Securities in aggregate principal amount equal to the aggregate
principal amount of Initial Securities represented by a Global Security
indicated in such Officers' Certificate as having been properly tendered and (B)
Definitive Securities representing Exchange Securities registered in the names
of, and in the principal amounts indicated in, such Officers' Certificate.
If the principal amount of the Global Security for the Exchange
Securities is less than the principal amount of the Global Security for the
Initial Securities, the Debenture Trustee shall make an endorsement on such
Global Security for Initial Securities indicating a reduction in the principal
amount represented thereby.
The Debenture Trustee shall deliver such Definitive Securities
representing Exchange Securities to the holders thereof as indicated in such
Officers' Certificate.
SECTION 2.08 Replacement Securities.
If any mutilated Security is surrendered to the Debenture Trustee, or
the Corporation and the Debenture Trustee receive evidence to their satisfaction
of the destruction, loss or theft of any Security, the Corporation shall issue
and the Debenture Trustee shall authenticate a replacement Security if the
Debenture Trustee's requirements for replacements of Securities are met. An
indemnity bond must be supplied by the holder that is sufficient in the judgment
of the Debenture Trustee and the Corporation to protect the Corporation, the
Debenture Trustee, any agent thereof or any Authenticating Agent from any loss
that any of them may suffer if a Security is replaced. The Corporation or the
Debenture Trustee may charge for its expenses in replacing a Security.
Every replacement Security is an obligation of the Corporation and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Securities duly issued hereunder.
SECTION 2.09 Temporary Securities.
Pending the preparation of Definitive Securities, the Corporation may
execute, and upon Corporation Order the Debenture 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.
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If temporary Securities are issued, the Corporation 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 Corporation for such purpose pursuant to Section
3.02 hereof, without charge to the holder thereof. Upon surrender for
cancellation of any one or more temporary Securities, the Corporation shall
execute, and the Debenture 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 temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as Definitive Securities.
SECTION 2.10 Cancellation.
The Corporation at any time may deliver Securities to the Debenture
Trustee for cancellation. The Debenture Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall return such canceled Securities to the
Corporation. The Corporation may not issue new Securities to replace Securities
that have been prepaid or paid or that have been delivered to the Debenture
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 Corporation, at its election, as
provided in clause (a) or clause (b) below:
(a) The Corporation 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 Corporation
shall notify the Debenture 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 Corporation
shall deposit with the Debenture 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 Debenture
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 Debenture 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 Debenture Trustee of the
notice of the proposed payment. The Debenture Trustee shall promptly
notify the Corporation of such special record date and, in the name and
at the expense of the Corporation, 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
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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 respective Predecessor Securities) are
registered on such special record date and shall be no longer payable
pursuant to the following clause (b).
(b) The Corporation 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 Corporation to the Debenture Trustee of the
proposed payment pursuant to this clause, such manner of payment shall
be deemed practicable by the Debenture Trustee.
SECTION 2.12 CUSIP Numbers.
The Corporation in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Debenture Trustee shall use "CUSIP"
numbers in notices of prepayment as a convenience to Securityholders; provided,
--------
however, that any such notice may state that no representation is made as to the
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correctness of such numbers either as printed on the Securities or as contained
in any notice of a 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 Corporation
will promptly notify the Debenture Trustee of any change in the CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE CORPORATION
SECTION 3.01 Payment of Principal and Interest.
The Corporation 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. The Corporation
further covenants to pay any and all amounts due in respect of the Securities,
including, without limitation, Additional Sums, as may be required pursuant to
Section 2.06(c), Liquidated Damages, if any, on the dates and in the manner
required under the Registration Rights Agreement or the Liquidated Damages
Agreement and Compounded Interest, as may be required pursuant to Section 16.01.
SECTION 3.02 Offices for Notices and Payments, etc.
So long as any of the Securities remain outstanding, the Corporation
will maintain in Wilmington, Delaware 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
Corporation in respect of the Securities or this Indenture may be served. The
Corporation will give to the Debenture Trustee written notice of the location of
any such office or agency and of any
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change of location thereof. Until otherwise designated from time to time by the
Corporation in a notice to the Debenture Trustee, any such office or agency for
all of the above purposes shall be the Principal Office of the Debenture
Trustee. In case the Corporation shall fail to maintain any such office or
agency in Wilmington, Delaware 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 Debenture Trustee.
In addition to any such office or agency, the Corporation may from time
to time designate one or more offices or agencies outside Wilmington, Delaware
where the Securities may be presented for payment, for registration of transfer
and for exchange and where notices and demands to or upon the Corporation in
respect of the Securities or this Indenture may be served in the manner provided
in this Indenture, and the Corporation may from time to time rescind such
designation, as the Corporation may deem desirable or expedient; provided,
--------
however, that no such designation or rescission shall in any manner relieve the
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Corporation of its obligation to maintain any such office or agency in
Wilmington, Delaware for the purposes above mentioned. The Corporation will give
to the Debenture Trustee prompt written notice of any such designation or
rescission thereof.
SECTION 3.03 Appointments to Fill Vacancies in Debenture Trustee's
Office.
The Corporation, whenever necessary to avoid or fill a vacancy in the
office of Debenture Trustee, will appoint, in the manner provided in Section
6.10, a Debenture Trustee, so that there shall at all times be a Debenture
Trustee hereunder.
SECTION 3.04 Provision as to Paying Agent.
(a) If the Corporation shall appoint a paying agent other than the
Debenture Trustee with respect to the Securities, it will cause such paying
agent to execute and deliver to the Debenture Trustee an instrument in which
such agent shall agree with the Debenture Trustee, subject to the provisions of
this Section 3.04,
(1) that it will hold all sums held by it as such agent
for the payment of the principal of and premium, if
any, or interest on the Securities (whether such sums
have been paid to it by the Corporation or by any
other obligor on the Securities) in trust for the
benefit of the holders of the Securities; and
(2) that it will give the Debenture Trustee notice of any
failure by the Corporation (or by any other obligor
on the Securities) to make any payment of the
principal of or premium, if any, or interest
(including Additional Sums and Compounded Interest,
if any) and Liquidated Damages, if any, on the
Securities when the same shall be due and payable.
(b) If the Corporation 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 Debenture Trustee of any failure to
take such action and of any failure by the Corporation (or by any other obligor
under the Securities) to make any
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payment of the principal of and, premium, if any, or interest on the Securities
when the same shall become due and payable.
(c) Anything in this Section 3.04 to the contrary notwithstanding, the
Corporation 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 Debenture Trustee all sums payable with respect to
the Securities, such sums to be held by the Debenture Trustee upon the trusts
herein contained.
(d) Anything in this Section 3.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 3.04 is subject to
Sections 11.03 and 11.04.
SECTION 3.05 Certificate to Debenture Trustee.
The Corporation will deliver to the Debenture Trustee on or before 120
days after the end of each fiscal year of the Corporation, 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 Corporation, stating that in the course of the performance by the
signers of their duties as officers of the Corporation they would normally have
knowledge of any Default by the Corporation 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,
the nature thereof and the action, if any, the Corporation intends to undertake
as a result of such Default.
SECTION 3.06 Compliance with Consolidation Provisions.
The Corporation 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.
SECTION 3.07 Limitation on Dividends.
The Corporation will not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Corporation's capital stock, (ii) make any payment
of principal of or premium, if any, or interest on or repay, repurchase or
redeem any debt securities of the Corporation (including 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 (other than the
Capital Securities Guarantee) by the Corporation of the debt securities of any
Subsidiary of the Corporation (including Other Guarantees) if such guarantee
ranks pari passu with or junior in 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, (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) as a result of a
reclassification of the Corporation's capital stock or the exchange or
conversion of one class or series of the Corporation's capital stock for another
class or series of the Corporation's capital stock, (d) the purchase of
fractional interests in shares of the Corporation's capital stock pursuant to
the conversion
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or exchange provisions of such capital stock or the security being converted or
exchanged and (e) purchases of Common Stock related to the issuance of Common
Stock or rights under any of the Corporation's benefit or compensation plans for
its directors, officers or employees or any of the Corporation's dividend
reinvestment plans), if at such time (1) there shall have occurred any event of
which the Corporation has actual knowledge that (a) is a Default or an Event of
Default and (b) in respect of which the Corporation shall not have taken
reasonable steps to cure, (2) the Securities are held by the Property Trustee
and the Corporation shall be in default with respect to its payment of any
obligations under the Capital Securities Guarantee or (3) the Corporation shall
have given notice of its election to exercise its right to commence an Extended
Interest Payment Period and shall not have rescinded such notice, and such
Extended Interest Payment Period or any extension thereof shall have commenced
and be continuing.
SECTION 3.08 Covenants as to Astoria Capital Trust I
In the event Securities are issued to the Trust or a trustee of such
Trust in connection with the issuance of Trust Securities by the Trust, for so
long as such Trust Securities remain outstanding, the Corporation (i) will
maintain 100% direct or indirect ownership of the Common Securities of the
Trust; provided, however, that any successor of the Corporation, permitted
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pursuant to Article X, may succeed to the Corporation's ownership of such Common
Securities, (ii) will use commercially reasonable efforts to cause the Trust (a)
to remain a business trust, except in connection with a distribution of
Securities 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, and (b)
to otherwise continue to be classified as a grantor trust and not an association
taxable as a corporation for United States federal income tax purposes, (iii)
will use commercially reasonable efforts to cause each holder of the Trust
Securities to be treated as owning an undivided beneficial interest in the
Securities and (iv) will not cause, as sponsor of the Trust, or permit, as
holder of the Common Securities, the dissolution, winding-up or liquidation of
the Trust, except as provided in the Declaration.
SECTION 3.09 Payment of Expenses.
In connection with the offering, sale and issuance of the Securities to
the Trust and in connection with the sale of the Trust Securities by the Trust,
the Corporation, 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 and expenses in
connection with any Exchange Offer, filing of a shelf
registration statement or other action to be taken pursuant to
the Registration Rights Agreement and Liquidated Damages
Agreement and compensation of the Debenture Trustee in
accordance with the provisions of Section 6.06;
(b) pay all costs and expenses of the Trust, including, but not
limited to, costs and expenses relating to the organization of
the Trust, the offering, sale and issuance of the Trust
Securities (including commissions payable to the Initial
Purchaser pursuant to the Purchase Agreement in connection
therewith), the fees and expenses of the Property Trustee and
the Delaware Trustee, the costs and expenses relating to the
operation of the Trust, including without limitation, costs
and expenses of
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accountants, attorneys, statistical or bookkeeping services,
expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of
assets of the Trust;
(c) be primarily and fully liable for any indemnification
obligations arising with respect to the Declaration;
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of
the Trust; and
(e) pay all other fees, expenses, debts and obligations (other
than in respect of the Trust Securities) related to the Trust.
SECTION 3.10 Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or resignation of the
Debenture Trustee, unless otherwise stated, the Corporation shall pay to the
Debenture Trustee all amounts accrued and owing to the Debenture Trustee to the
date of such termination, removal or resignation. Upon termination of the
Declaration or the removal or resignation of the Delaware Trustee or the
Property Trustee, as the case may be, pursuant to Section 5.7 of the
Declaration, the Corporation shall pay to the Delaware Trustee or the Property
Trustee, as the case may be, all amounts accrued and owing to such trustee(s) to
the date of such termination, removal or resignation.
ARTICLE IV
LIST OF SECURITYHOLDERS AND REPORTS BY THE
CORPORATION AND THE DEBENTURE TRUSTEE
SECTION 4.01 List of Securityholders.
The Corporation covenants and agrees that it will furnish or cause to
be furnished to the Debenture Trustee:
(a) on a semi-annual basis on each regular record date for the
Securities, a list, in such form as the Debenture 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 Debenture Trustee may request in
writing, within 30 days after the receipt by the Corporation,
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 Debenture Trustee is
in possession thereof by reason of its acting as security registrar for the
Securities.
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SECTION 4.02 Preservation and Disclosure of Lists.
(a) The Debenture 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 4.01 or (2) received by it in the capacity of security
registrar (if so acting) hereunder. The Debenture Trustee may destroy any list
furnished to it as provided in Section 4.01 upon receipt of a new list so
furnished.
(b) In case three or more holders of Securities (hereinafter referred
to as "applicants") apply in writing to the Debenture Trustee and furnish to the
Debenture 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
Debenture Trustee shall, within five Business Days after the receipt of such
application, at its election, either:
(1) afford such applicants access to the information
preserved at the time by the Debenture Trustee in
accordance with the provisions of subsection (a) of
this Section 4.02, or
(2) inform such applicants as to the approximate number
of holders of all Securities whose names and
addresses appear in the information preserved at the
time by the Debenture Trustee in accordance with the
provisions of subsection (a) of this Section 4.02,
and as to the approximate cost of mailing to such
Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Debenture Trustee shall elect not to afford such applicants
access to such information, the Debenture Trustee shall, upon the written
request of such applicants, mail to each Securityholder whose name and address
appear in the information preserved at the time by the Debenture Trustee in
accordance with the provisions of subsection (a) of this Section 4.02 a copy of
the form of proxy or other communication which is specified in such request with
reasonable promptness after a tender to the Debenture Trustee of the material to
be mailed and of payment, or provision for the payment, of the reasonable
expenses of mailing, unless within five Business Days after such tender, the
Debenture 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 Debenture 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 Debenture 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
Debenture Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
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(c) Each and every holder of Securities, by receiving and holding the
same, agrees with the Corporation and the Debenture Trustee that neither the
Corporation nor the Debenture 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 4.02, regardless of the source from which such
information was derived, and that the Debenture Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
said subsection (b).
SECTION 4.03 Reports by the Corporation.
(a) The Corporation covenants and agrees to file with the Debenture
Trustee, within 15 days after the date on which the Corporation 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
prescribe) which the Corporation may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the
Corporation is not required to file information, documents or reports pursuant
to either of such sections, then to provide to the Debenture Trustee, such of
the supplementary and periodic information, documents and reports which would
have been required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations. The Corporation also
covenants and agrees to comply with the provisions of Section 314(a) of the
Trust Indenture Act.
(b) The Corporation covenants and agrees to file with the Debenture
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 Corporation 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 Corporation 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
Debenture Trustee, such summaries of any information, documents and reports
required to be filed by the Corporation pursuant to subsections (a) and (b) of
this Section 4.03 as may be required by rules and regulations prescribed from
time to time by the Commission.
(d) Delivery of such reports, information and documents to the
Debenture Trustee is for informational purposes only and the Debenture Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Corporation's compliance with any of its covenants hereunder (as to which
the Debenture Trustee is entitled to rely exclusively on Officers'
Certificates).
(e) So long as is required for an offer or sale of the Securities to
qualify for an exemption under Rule 144A under the Securities Act, the
Corporation shall, upon request, provide the information required by clause
(d)(4) thereunder to each Securityholder and to each beneficial owner and
prospective purchaser of Securities identified by each Securityholder of
Restricted Securities, unless such information is furnished to the Commission
pursuant to Section 13 or l5(d) of the Exchange Act.
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SECTION 4.04 Reports by the Debenture Trustee.
(a) The Debenture Trustee shall transmit to Securityholders such
reports concerning the Debenture 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 Debenture Trustee shall, within 60 days after the date
hereof, and no later than the anniversary date hereof in each succeeding year,
deliver to Securityholders a brief report, dated as of each such date which
complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission
to Securityholders, be filed by the Debenture Trustee with each stock exchange,
if any, upon which the Securities are listed, with the Commission and with the
Corporation. The Corporation will promptly notify the Debenture Trustee when the
Securities are listed on any stock exchange.
ARTICLE V
REMEDIES OF THE DEBENTURE TRUSTEE AND
SECURITYHOLDERS UPON EVENT OF DEFAULT
SECTION 5.01 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 involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any interest (including Compounded
Interest and Additional Sums, if any) or Liquidated Damages,
if any, on the Securities or any Other Debentures (about which
a Responsible Officer of the Debenture Trustee has actual
knowledge) when due, and continuance of such default for a
period of 30 days; provided, however, that a valid extension
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of an interest payment period by the Corporation in accordance
with the terms hereof or thereof shall not constitute a
default in the payment of interest for this purpose; or
(b) default in the payment of any principal of (or premium, if
any, on) the Securities or any Other Debentures (about which a
Responsible Officer of the Debenture Trustee has actual
knowledge) when due, whether at maturity, upon prepayment, by
declaration of acceleration of maturity or otherwise; or
(c) default in the performance, or breach of any covenant or
warranty of the Corporation 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 Corporation by the Debenture Trustee or to the
Corporation and the Debenture Trustee by the holders of at
least 25% in aggregate
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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 Corporation 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 Corporation 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 Corporation shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order
for relief in an involuntary case under any such law, or shall
consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Corporation or
of any substantial part of its property, or shall make any
general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due.
If an Event of Default with respect to Securities at the time
outstanding occurs and is continuing, then in every such case the Debenture
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 Corporation
(and to the Debenture 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 Corporation shall pay or shall deposit with the Debenture Trustee a sum
sufficient to pay (A) all matured installments of interest (including Compounded
Interest and Additional Sums, if any) and Liquidated Damages, if any, on 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 compensation due to the Debenture Trustee and each
predecessor Debenture Trustee, their respective agents, attorneys and counsel,
pursuant to Section 6.06, 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 Corporation and to the Debenture
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.
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In case the Debenture 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 Debenture Trustee, then and in every
such case the Corporation, the Debenture 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 Corporation, the Debenture
Trustee and the holders of the Securities shall continue as though no such
proceeding had been taken.
SECTION 5.02 Payment of Securities on Default; Suit Therefor.
The Corporation covenants that (a) in case default shall be made in the
payment of any installment of interest (including Compounded Interest and
Additional Sums, if any) and Liquidated Damages, if any, on any of the
Securities as and when the same shall become due and 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 Debenture Trustee, the Corporation will pay to the
Debenture 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 (including Compounded Interest and
Additional Sums, if any) and Liquidated Damages, if any, 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 the Trust or a trustee of such Trust, without
duplication of any other amounts paid by the Trust or a trustee in respect
thereof) upon the overdue installments of interest (including Compounded
Interest and Additional Sums, if any) and Liquidated Damages, if any, 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
reasonable compensation to the Debenture Trustee, its agents, attorneys and
counsel, and any other amount due to the Debenture Trustee pursuant to Section
6.06.
In case the Corporation shall fail forthwith to pay such amounts upon
such demand, the Debenture 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 Corporation or any other
obligor on the Securities and collect in the manner provided by law out of the
property of the Corporation 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 Corporation or any other obligor on the Securities
under Title 11, United States Code, or any other applicable law, or in case a
receiver or trustee shall have been appointed for the property of the
Corporation or such other obligor, or in the case of any other similar judicial
proceedings relative to the Corporation or other obligor upon the Securities, or
to the creditors or property of the Corporation or such other obligor, the
Debenture 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 Debenture Trustee shall have made any demand
pursuant to the provisions of this Section 5.02, shall be entitled and
empowered, by intervention in such proceedings
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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
Debenture Trustee (including any claim for amounts due to the Debenture Trustee
pursuant to Section 6.06) and of the Securityholders allowed in such judicial
proceedings relative to the Corporation or any other obligor on the Securities,
or to the creditors or property of the Corporation or such other obligor, 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 Debenture Trustee, and, in the event that the Debenture Trustee
shall consent to the making of such payments directly to the Securityholders, to
pay to the Debenture Trustee such amounts as shall be sufficient to cover
reasonable compensation to, and expenses of, the Debenture Trustee, each
predecessor Debenture Trustee and their respective agents, attorneys and
counsel, and all other amounts due to the Debenture Trustee pursuant to Section
6.06.
Nothing herein contained shall be construed to authorize the Debenture
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 Debenture 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 Debenture 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 Debenture 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 Debenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Debenture Trustee shall be a party), the Debenture 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 5.03 Application of Moneys Collected by Debenture Trustee.
Any moneys collected by the Debenture Trustee shall be applied in the
following order, at the date or dates fixed by the Debenture 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 all other amounts due to the Debenture Trustee under Section
6.06;
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Second: To the payment of all Senior Indebtedness of the Corporation 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 (including
Compounded Interest and Additional Sums, if any) and Liquidated Damages, if any,
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 Corporation.
SECTION 5.04 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 Debenture
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 Debenture Trustee to institute such action, suit or proceeding
in its own name as Debenture Trustee hereunder and shall have offered to the
Debenture Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Debenture
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 Debenture
Trustee, that no one or more holders of Securities shall have any right in any
manner whatever by virtue of or by availing itself of any provision of this
Indenture to affect, disturb or prejudice the rights of any other 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 (including Compounded Interest and Additional
Sums, if any) and Liquidated Damages, if any, 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 Debenture Trustee, that no one or more
holders of Securities shall have any right in any manner whatsoever by virtue or
by availing itself 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 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 Debenture Trustee shall be entitled to such relief as can
be given either at law or in equity.
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The Corporation and the Debenture 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 referred to in clause (a) or
(b) of Section 5.01.
SECTION 5.05 Proceedings by Debenture Trustee.
In case an Event of Default occurs with respect to Securities and is
continuing, the Debenture 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 Debenture 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 Debenture Trustee by this Indenture or by law.
SECTION 5.06 Remedies Cumulative and Continuing.
All powers and remedies given by this Article V to the Debenture
Trustee or to the Securityholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any other powers and remedies available
to the Debenture 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 Debenture
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
5.04, every power and remedy given by this Article V or by law to the Debenture
Trustee or to the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Debenture Trustee or by the
Securityholders.
SECTION 5.07 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
Debenture Trustee, or exercising any trust or power conferred on the Debenture
Trustee; provided, however, that (subject to the provisions of Section 6.01) the
-------- -------
Debenture Trustee shall have the right to decline to follow any such direction
if the Debenture Trustee shall determine that the action so directed would be
unjustly prejudicial to the holders not taking part in such direction or if the
Debenture Trustee being advised by counsel determines that the action or
proceeding so directed may not lawfully be taken or if the Debenture Trustee in
good faith by one of its Responsible Officers shall determine that the action or
proceedings so directed would involve the Debenture 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 (including
Compounded Interest and Additional Sums, if any) or Liquidated Damages,
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if any, on any of the Securities (unless such default has been cured and a sum
sufficient to pay all matured installments of interest (including Compounded
Interest and Additional Sums, if any) and principal (and premium, if any) due
otherwise than by acceleration has been deposited with the Debenture Trustee) 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; 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
Corporation, the Debenture 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 5.07, 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 5.08 Notice of Defaults
(a) The Debenture Trustee shall, within 90 days after the occurrence of
a Default with respect to the Securities actually known to a Responsible Officer
of the Debenture Trustee, mail to all Securityholders, as the names and
addresses of such holders appear upon the Security Register, notice of all such
Defaults, unless such Default shall have been cured before the giving of such
notice (the term "Default" for the purpose of this Section 5.08 being hereby
defined to be any of the events specified in clauses (a), (b), (c), (d) and (e)
of Section 5.01, not including periods of grace, if any, provided for therein,
and irrespective of the giving of written notice specified in clause (c) of
Section 5.01); provided, however, that, except in the case of Default in the
-------- -------
payment of the principal of (or premium, if any) or interest (including
Compounded Interest or Additional Sums, if any) or Liquidated Damages, if any,
on any of the Securities, the Debenture 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
Debenture Trustee in good faith determines that the withholding of such notice
is in the interests of the Securityholders; provided, further, that in the case
-------- -------
of any Default of the character specified in Section 5.01(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.
(b) Within ten Business Days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Debenture Trustee, the
Debenture Trustee shall transmit notice of such Event of Default to all
Securityholders as their names and addresses appear on the Security Register,
unless such Event of Default shall have been cured or waived.
SECTION 5.09 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Security by
its acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Debenture Trustee for any action
taken or omitted by it as Debenture Trustee, the filing by any party litigant in
such suit
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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 5.09 shall not apply to any suit instituted by
the Debenture 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 (including Compounded Interest and Additional Sums,
if any) or Liquidated Damages, if any, on any Security against the Corporation
on or after the same shall have become due and payable.
ARTICLE VI
CONCERNING THE DEBENTURE TRUSTEE
SECTION 6.01 Duties and Responsibilities of Debenture Trustee.
With respect to the holders of the Securities issued hereunder, the
Debenture Trustee, prior to the occurrence of an Event of Default (which, other
than in the case of Sections 5.01(a) and 5.01(b) hereof, is known to the
Debenture Trustee) and after the curing or waiving of all such Events of Default
which may have occurred, undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture. In case an Event of Default
(which, other than in the case of Sections 5.01(a) and 5.01(b) hereof, is known
to the Debenture Trustee) has occurred (which has not been cured or waived), the
Debenture Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
No provision of this Indenture shall be construed to relieve the
Debenture 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 (which, other
than in the case of Sections 5.01(a) and 5.01(b) hereof, is
known to the Debenture Trustee) and after the curing or
waiving of all such Events of Default which may have occurred,
(1) the duties and obligations of the Debenture Trustee
shall be determined solely by the express provisions
of this Indenture, and the Debenture 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 Debenture Trustee; and
(2) in the absence of bad faith on the part of the
Debenture Trustee, the Debenture Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed
therein, upon any certificate or opinion furnished to
the Debenture Trustee and conforming to the
requirements of this Indenture; but, in the case of
any such certificate or opinion which by any
provision hereof is specifically required to be
furnished
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to the Debenture Trustee, the Debenture Trustee shall
be under a duty to examine the same to determine
whether or not it conforms on its face to the
requirements of this Indenture;
(b) the Debenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers, unless it shall be proved that the
Debenture Trustee was negligent in ascertaining the pertinent
facts; and
(c) the Debenture 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 5.07, relating to the time, method and place of
conducting any proceeding for any remedy available to the
Debenture Trustee, or exercising any trust or power conferred
upon the Debenture Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Debenture 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 reasonably believes that the repayment of
such funds or liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably assured to
it.
SECTION 6.02 Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Debenture Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, note, debenture
or other paper or document believed by it 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 Corporation
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 Debenture Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the
Corporation;
(c) the Debenture Trustee may consult with counsel of its
selection and any advice or Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good
faith and in accordance with such advice or Opinion of
Counsel;
(d) the Debenture Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at
the request, order or direction of any of the Securityholders,
pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Debenture Trustee
reasonable and sufficient security or indemnity against the
costs, expenses and liabilities which may be incurred therein
or thereby;
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(e) the Debenture 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 Debenture Trustee of the
obligation, upon the occurrence of an Event of Default (which,
other than in the case of Sections 5.01(a) and 5.01(b) hereof,
is known to the Debenture Trustee) (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 its exercise as a prudent person would exercise or
use under the circumstances in the conduct of his or her own
affairs;
(f) the Debenture 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
-------
Debenture 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 Debenture Trustee, not reasonably
assured to the Debenture Trustee by the security afforded to
it by the terms of this Indenture, the Debenture Trustee may
require reasonable indemnity against such expense or liability
as a condition to so proceeding;
(g) the Debenture 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 Debenture 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;
(h) the Debenture Trustee shall not be charged with knowledge of
any Default or Event of Default unless (1) such Default or
Event of Default falls within Section 5.01(a) (other than a
default with respect to the payment or nonpayment of
Compounded Interest, Liquidated Damages or Additional Sums) or
Section 5.01(b) of the Indenture, (2) a Responsible Officer
shall have actual knowledge of such Default or Event of
Default or (3) written notice of such Default or Event of
Default shall have been given to the Debenture Trustee by the
Corporation or any other obligor on the Securities or by any
holder of the Securities; and
(i) the Debenture Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith, without
negligence or willful misconduct and believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
SECTION 6.03 No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities (except in the
certificate of authentication of the Debenture Trustee or the Authenticating
Agent) shall be taken as the statements of the Corporation, and the Debenture
Trustee and the Authenticating Agent assume no responsibility for
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the correctness of the same. The Debenture Trustee and the Authenticating Agent
make no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Debenture Trustee and the Authenticating Agent shall not
be accountable for the use or application by the Corporation of any Securities
or the proceeds of any Securities authenticated and delivered by the Debenture
Trustee or the Authenticating Agent in conformity with the provisions of this
Indenture.
SECTION 6.04 Debenture Trustee, Authenticating Agent, Paying Agents,
Transfer Agents and Registrar May Own Securities.
The Debenture Trustee or any Authenticating Agent or any paying agent
or any transfer agent or any security registrar for the Securities, 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 Debenture Trustee,
Authenticating Agent, paying agent, transfer agent or security registrar for the
Securities.
SECTION 6.05 Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys received by the
Debenture Trustee or any paying agent shall, until used or applied as herein
provided, be held in trust for the purpose for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Debenture 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 Corporation. 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 Corporation, signed by an Officer
thereof.
SECTION 6.06 Compensation and Expenses of Debenture Trustee.
The Corporation, as issuer of Securities under this Indenture,
covenants and agrees to pay to the Debenture Trustee from time to time, and the
Debenture Trustee shall be entitled to, such compensation as shall be agreed to
in writing between the Corporation and the Debenture 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 Corporation will pay or reimburse the Debenture Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Debenture 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 Corporation also covenants to indemnify each of
the Debenture Trustee (including in its individual capacity) and any predecessor
Debenture Trustee (and its officers, agents, directors and employees) for, and
to hold it harmless against, any and all loss, damage, claim, action, suit,
liability or expense including taxes (other than taxes based on the income of
the Debenture Trustee) incurred without negligence or bad faith on the part of
the Debenture 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. The obligations of the Corporation under
this Section 6.06 to compensate and indemnify the Debenture Trustee and to pay
or reimburse the Debenture 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 Debenture Trustee as such, except funds held in
trust for the benefit of the holders of particular Securities.
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When the Debenture Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(d) or Section
5.01(e), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for its services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the resignation or removal
of the Debenture Trustee and the defeasance or other termination of this
Indenture.
SECTION 6.07 Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02, whenever in the
administration of the provisions of this Indenture the Debenture Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or omitting any action hereunder, such matter (unless other evidence in
respect thereof is herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Debenture Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Debenture Trustee, and such Officers' Certificate, in the absence of negligence
or bad faith on the part of the Debenture Trustee, shall be full warrant to the
Debenture Trustee for any action taken or omitted by it under the provisions of
this Indenture upon the faith thereof.
SECTION 6.08 Conflicting Interest of Debenture Trustee.
If the Debenture Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Debenture Trustee and the Corporation shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 6.09 Eligibility of Debenture Trustee.
The Debenture Trustee hereunder shall at all times be a Person
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 fifty million U.S. dollars ($50,000,000) and subject to
supervision or examination by federal, state, territorial, or District of
Columbia authority. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 6.09 the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
The Corporation may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Corporation, serve
as Debenture Trustee.
In case at any time the Debenture Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Debenture Trustee shall
resign immediately in the manner and with the effect specified in Section 6.10.
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SECTION 6.10 Resignation or Removal of Debenture Trustee.
(a) The Debenture Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice of such resignation
to the Corporation and by mailing notice thereof to the holders of the
Securities at their addresses as they shall appear on the Security Register.
Upon receiving such notice of resignation, the Corporation shall promptly
appoint a successor trustee or trustees, in accordance with the provisions of
Section 6.09, by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Debenture Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment within 60 days after the mailing of such notice of
resignation to the affected Securityholders, the resigning Debenture 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 5.09, 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 Debenture Trustee shall fail to comply with the
provisions of Section 6.08 after written request
therefor by the Corporation or by any Securityholder
who has been a bona fide holder of a Security or
Securities for at least six months, or
(2) the Debenture Trustee shall cease to be eligible in
accordance with the provisions of Section 6.09 and
shall fail to resign after written request therefor
by the Corporation or by any Securityholder who has
been a bona fide holder of a Security or Securities
for at least six months, or
(3) the Debenture Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent,
or a receiver of the Debenture Trustee or of its
property shall be appointed, or any public officer
shall take charge or control of the Debenture Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Corporation may remove the Debenture Trustee and
appoint a successor trustee, in accordance with the provisions of Section 6.09,
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the Debenture Trustee so removed and one copy to the successor
trustee, or, subject to the provisions of Section 5.09, 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 Debenture 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 Debenture 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 Debenture Trustee
and nominate a successor trustee, which shall be deemed appointed as successor
trustee unless within 10 days after written notification of such nomination the
Corporation 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 Debenture 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 Debenture 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 Debenture Trustee.
Any successor trustee appointed as provided in Section 6.10 shall
execute, acknowledge and deliver to the Corporation 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 Corporation or of the successor
trustee, the trustee ceasing to act shall, upon payment of all amounts then due
it pursuant to the provisions of Section 6.06, execute and deliver an instrument
transferring to such successor trustee all the rights and powers of the trustee
so ceasing to act and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring trustee thereunder. Upon
request of any such successor trustee, the Corporation shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.06.
No successor trustee shall accept appointment as provided in this
Section 6.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section 6.11, the Corporation 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 Corporation 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
Corporation.
SECTION 6.12 Succession by Merger, etc.
Any Person into which the Debenture Trustee may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Debenture Trustee shall be a party, or
any Person succeeding to all or substantially all of the
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corporate trust business of the Debenture Trustee, shall be the successor of the
Debenture 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 any Securities shall have been authenticated but not delivered
at the time such successor to the Debenture Trustee shall succeed to the trusts
created by this Indenture, any such successor to the Debenture 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 Debenture 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 Debenture Trustee shall have; provided,
--------
however, that the right to adopt the certificate of authentication of any
- -------
predecessor Debenture Trustee or authenticate Securities in the name of any
predecessor Debenture Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 6.13 Limitation on Rights of Debenture Trustee as a Creditor.
The Debenture 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 Debenture 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
Debenture Trustee upon the request of the Corporation with power to act on the
Debenture Trustee's behalf and subject to the Debenture Trustee's 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, however, that the Debenture Trustee shall have no liability to the
- -------- -------
Corporation 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 Person organized and doing business under the laws of
the United States or of any state or territory thereof or of the District of
Columbia authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of at least $5,000,000 and being subject to
supervision or examination by federal, state, territorial or District of
Columbia authority. If such Person publishes reports of condition at least
annually pursuant to law or the requirements of such authority, then for the
purposes of this Section 6.14 the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect herein specified in
this Section.
Any Person into which any Authenticating Agent may be merged, converted
or with which it may be consolidated, or any Person resulting from any merger or
consolidation to which any Authenticating Agent shall be a party, or any Person
succeeding to the corporate trust business of any Authenticating Agent, shall be
the successor of such Authenticating Agent hereunder, if such
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successor Person is otherwise eligible under this Section 6.14 without the
execution or filing of any paper or any further act on the part of the parties
hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Debenture Trustee and to the Corporation. The
Debenture 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 Corporation. 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 Debenture Trustee may, and upon the
request of the Corporation shall, promptly appoint a successor Authenticating
Agent eligible under this Section 6.14, shall give written notice of such
appointment to the Corporation 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 Corporation, as issuer of the Securities, agrees to pay to any
Authenticating Agent from time to time reasonable compensation for its services.
Any Authenticating Agent shall have no responsibility or liability for any
action taken by it as such in accordance with the directions of the Debenture
Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01 Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Securities may take
any action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action), the fact that at
the time of taking any such action the holders of such specified percentage have
joined therein may be evidenced (a) by any instrument (including by way of
electronic transmission) or any number of instruments of similar tenor executed
by such Securityholders in person or by agent or proxy 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 Corporation shall solicit from the Securityholders any request,
demand, authorization, direction, notice, consent, waiver or other action, the
Corporation 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, but the Corporation 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 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
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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 7.02 Proof of Execution by Securityholders.
Subject to the provisions of Sections 6.01, 6.02 and 8.05, proof of the
execution of any instrument by a Securityholder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Debenture Trustee or in such manner as shall be
satisfactory to the Debenture Trustee. The ownership of Securities shall be
proved by the Security Register or by a certificate of the security registrar
for the Securities. The Debenture Trustee may require such additional proof of
any matter referred to in this Section 7.02 as it shall deem necessary.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 8.06.
SECTION 7.03 Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any Security,
the Corporation, the Debenture Trustee, any Authenticating Agent, any paying
agent, any transfer agent and any security registrar for the Securities may deem
the person in whose name such Security shall be registered upon the Security
Register to be, and may treat him or her as, the absolute 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 2.06) interest on such Security and for all other purposes; and
neither the Corporation nor the Debenture Trustee nor any Authenticating Agent
nor any paying agent nor any transfer agent nor any security registrar for the
Securities shall be affected by any notice to the contrary. All such payments so
made to any holder for the time being or upon his or her 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 7.04 Securities Owned by Corporation 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 that are owned by the Corporation 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 Corporation or
any other obligor on the Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided, however, that
-------- -------
for the purposes of determining whether the Debenture Trustee shall be protected
in relying on any such direction, consent or waiver, only Securities which a
Responsible Officer of the Debenture 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 7.04 if the pledgee
shall establish to the satisfaction of the Debenture Trustee the pledgee's right
to vote such Securities and that the pledgee is not the Corporation or any such
other obligor or Person directly or indirectly controlling or controlled by
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or under direct or indirect common control with the Corporation or any such
other obligor. In the case of a dispute as to such right, any decision by the
Debenture Trustee taken upon the advice of counsel shall be full protection to
the Debenture Trustee.
SECTION 7.05 Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Debenture
Trustee, as provided in Section 7.01, of the taking of any action by the holders
of the percentage in aggregate principal amount of the 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 7.01, the serial number of which is shown by the evidence to
be included in the group of Securities the holders of which have consented to
such action, may, by filing written notice with the Debenture Trustee at its
principal office and upon proof of holding as provided in Section 7.02, 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.
ARTICLE VIII
MEETINGS OF SECURITYHOLDERS
SECTION 8.01 Purposes of Meetings.
A meeting of Securityholders may be called at any time and from time to
time pursuant to the provisions of this Article VIII for any of the following
purposes:
(a) to give any notice to the Corporation or to the Debenture
Trustee, or to give any directions to the Debenture 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 Debenture Trustee and nominate a successor
trustee pursuant to the provisions of Article VI;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section
9.02; or
(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.
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SECTION 8.02 Call of Meetings by Debenture Trustee.
The Debenture Trustee may at any time call a meeting of Securityholders
to take any action specified in Section 8.01, to be held at such time and at
such place in Wilmington, Delaware as the Debenture 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 Security Register. Such notice shall be mailed not less
than 20 nor more than 180 days prior to the date fixed for the meeting.
SECTION 8.03 Call of Meetings by Corporation or Securityholders.
In case at any time the Corporation, pursuant to a resolution of the
Board of Directors, or the holders of at least 20% in aggregate principal amount
of the Securities then outstanding, shall have requested the Debenture 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
Debenture Trustee shall not have mailed the notice of such meeting within 20
days after receipt of such request, then the Corporation or such Securityholders
may determine the time and the place in [Nassau County, New York] for such
meeting and may call such meeting to take any action authorized in Section 8.01,
by mailing notice thereof as provided in Section 8.02.
SECTION 8.04 Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders, a Person
shall be (a) a holder of one or more Securities or (b) 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 Debenture Trustee and its counsel and any
representatives of the Corporation and its counsel.
SECTION 8.05 Regulations.
Notwithstanding any other provisions of this Indenture, the Debenture
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 Debenture Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Corporation or by Securityholders as provided in Section 8.03, in which case
the Corporation 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.
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Subject to the provisions of Section 8.04, at any meeting each holder
of Securities or proxy therefor shall be entitled to one vote for each $1,000
principal amount of Securities held or represented by him or her; 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 8.02 or 8.03 may be adjourned from time to time by a
majority of those present, and the meeting may be held as so adjourned without
further notice.
SECTION 8.06 Voting.
The vote upon any resolution submitted to any meeting of holders of
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 notice of the meeting and showing that said notice was mailed as
provided in Section 8.02. The record shall show the serial numbers of the
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 Corporation and
the other to the Debenture Trustee to be preserved by the Debenture Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
The holders of the Initial Securities and the Exchange Securities shall vote for
all purposes as a single class.
ARTICLE IX
AMENDMENTS
SECTION 9.01 Without Consent of Securityholders.
The Corporation and the Debenture Trustee may from time to time and at
any time amend this Indenture, without the consent of the Securityholders for
one or more of the following purposes:
(a) to evidence the succession of another Person to the
Corporation, or successive successions, and the assumption by
the successor Person of the covenants, agreements and
obligations of the Corporation pursuant to Article X hereof;
(b) to add to the covenants of the Corporation such further
covenants, restrictions or conditions for the protection of
the Securityholders as the Board of Directors and the
Debenture 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
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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 Debenture Trustee upon such default;
(c) to provide for the issuance under this Indenture of Securities
in coupon 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
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, the form of restricted securities
legends, if any, to be placed on Securities, and all other
matters required pursuant to Section 2.07 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 the Trust following a
Dissolution Event, provided that any such action shall not
materially adversely affect the interests of the holders of
the Securities;
(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 Debenture Trustee is hereby authorized to join with the Corporation
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 Debenture Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which affects the
Debenture Trustee's own rights, duties or immunities under this Indenture or
otherwise.
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Any amendment to this Indenture authorized by the provisions of this
Section 9.01 may be executed by the Corporation and the Debenture Trustee
without the consent of the holders of any of the Securities at the time
outstanding, notwithstanding any of the provisions of Section 9.02.
SECTION 9.02 With Consent of Securityholders.
With the consent (evidenced as provided in Section 7.01) of the holders
of a majority in aggregate principal amount of the Securities at the time
outstanding the Corporation, when authorized by a Board Resolution, and the
Debenture Trustee may from time to time and at any time amend this 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) change 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 change any
prepayment provisions, or make the principal thereof or any interest or premium
thereon payable in any coin or currency other than U.S. dollars, or impair or
affect the right of any Securityholder to institute suit for payment 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 the 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; 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 Corporation accompanied by a copy of a
resolution of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any supplemental indenture effecting such
amendment, and upon the filing with the Debenture Trustee of evidence of the
consent of Securityholders as aforesaid, the Debenture Trustee shall join with
the Corporation in the execution of such supplemental indenture unless such
supplemental indenture affects the Debenture Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Debenture
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
Promptly after the execution by the Corporation and the Debenture
Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Debenture Trustee shall transmit by mail, first class postage
prepaid, a notice, prepared by the Corporation, 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
Debenture 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 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
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SECTION 9.03 Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions of this
Article IX shall comply with the Trust Indenture Act. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article IX, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Debenture Trustee, the Corporation
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.
SECTION 9.04 Notation on Securities.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article IX may bear a
notation in form approved by the Debenture Trustee as to any matter provided for
in such supplemental indenture. If the Corporation or the Debenture Trustee
shall so determine, new Securities so modified as to conform, in the opinion of
the Debenture 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 Corporation, authenticated by the Debenture Trustee or the
Authenticating Agent and delivered in exchange for the Securities then
outstanding.
SECTION 9.05 Evidence of Compliance of Supplemental Indenture to be
Furnished to Debenture Trustee.
The Debenture Trustee, subject to the provisions of Sections 6.01 and
6.02, 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.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER AND LEASE
SECTION 10.01 Corporation 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 Corporation with or into any other
Person (whether or not affiliated with the Corporation, as the case may be), or
successive consolidations or mergers in which the Corporation 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 Corporation, 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
Corporation, or its successor or successors, as the case may be) authorized to
acquire and operate the same; provided, that (a) the Corporation is the
--------
surviving Person, or the Person formed by or surviving any such consolidation or
merger (if other than the Corporation) 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)
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if the Corporation is not the surviving Person, upon any such consolidation,
merger, sale, conveyance, transfer or lease, 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
Corporation shall be expressly assumed by the surviving Person, by supplemental
indenture (which shall conform to the provisions of the Trust Indenture Act as
then in effect) satisfactory in form to the Debenture Trustee, executed and
delivered to the Debenture Trustee by the Person formed by such consolidation,
or into which the Corporation 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 10.02 Successor Person to be Substituted for Corporation.
In case of any such consolidation, merger, sale, conveyance, transfer
or lease, and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Debenture Trustee and satisfactory in
form to the Debenture Trustee, of the obligation of 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 Corporation,
such successor Person shall succeed to and be substituted for the Corporation,
with the same effect as if it had been named herein as a party hereto, and the
Corporation 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 the
Corporation, any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Corporation and delivered to the Debenture
Trustee or the Authenticating Agent; and, upon the order of such successor
Person instead of the Corporation and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Debenture Trustee or the
Authenticating Agent shall authenticate and deliver any Securities which
previously shall have been signed and delivered by any Officer of the
Corporation to the Debenture Trustee or the Authenticating Agent for
authentication, and any Securities which such successor Person thereafter shall
cause to be signed and delivered to the Debenture 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 Securities had been issued at the date of the execution
hereof.
SECTION 10.03 Opinion of Counsel to be Given Debenture Trustee.
The Debenture Trustee, subject to the provisions of Sections 6.01 and
6.02, 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.
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ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01 Discharge of Indenture.
When (a) the Corporation shall deliver to the Debenture 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 2.08) and not theretofore canceled, or (b) all
the Securities not theretofore canceled or delivered to the Debenture 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 Debenture Trustee for the giving
of notice of prepayment, and the Corporation shall deposit with the Debenture
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 2.08) not theretofore canceled or delivered to the Debenture Trustee for
cancellation, including principal (and premium, if any) and interest (including
Compounded Interest and Additional Sums, if any) and Liquidated Damages, if any,
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 (including Compounded Interest and
Additional Sums, if any) or Liquidated Damages, if any, on the Securities (1)
theretofore repaid to the Corporation in accordance with the provisions of
Section 11.04, or (2) paid to any State or to the District of Columbia pursuant
to its unclaimed property or similar laws, and if, in either case the
Corporation shall also pay or cause to be paid all other sums payable hereunder
by the Corporation, then this Indenture shall cease to be of further effect
except for the provisions of Sections 2.02, 2.07, 2.08, 3.01, 3.02, 3.04, 6.06,
6.10 and 11.04 hereof, which shall survive until such Securities shall mature
and be paid. Thereafter, Sections 6.06, 6.10 and 11.04 shall survive, and the
Debenture Trustee, on demand of the Corporation accompanied by any Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the
Corporation, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture; the Corporation, however, hereby agrees to reimburse
the Debenture Trustee for any costs or expenses thereafter reasonably and
properly incurred by the Debenture Trustee in connection with this Indenture or
the Securities.
SECTION 11.02 Deposited Moneys and U.S. Government Obligations to be
Held in Trust by Debenture Trustee.
Subject to the provisions of Section 11.04, all moneys and U.S.
Government Obligations deposited with the Debenture Trustee pursuant to Sections
11.01 or 11.05 shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Corporation 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
Debenture Trustee, of all sums due and to become due thereon for principal,
premium, if any, and interest.
The Corporation shall pay and indemnify the Debenture Trustee against
any tax, fee or other charge imposed on or assessed against the U.S.
Governmental Obligations deposited pursuant to Section 11.05 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.
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SECTION 11.03 Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys then
held by any paying agent of the Securities (other than the Debenture Trustee)
shall, upon written demand of the Corporation, be repaid to it or paid to the
Debenture Trustee, and thereupon such paying agent shall be released from all
further liability with respect to such moneys.
SECTION 11.04 Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Debenture Trustee or any
paying agent for payment of the principal of (or premium, if any) or interest
(including Compounded Interest and Additional Sums, if any) or Liquidated
Damages, if any, 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 (including Compounded Interest and Additional
Sums, if any) or Liquidated Damages, if any, on such Securities, as the case may
be, shall have become due and payable, shall be repaid to the Corporation by the
Debenture Trustee or such paying agent; and the holder of any of the Securities
shall thereafter look only to the Corporation for any payment which such holder
may be entitled to collect and all liability of the Debenture Trustee or such
paying agent with respect to such moneys shall thereupon cease.
SECTION 11.05 Defeasance Upon Deposit of Moneys or U.S. Government
Obligations.
The Corporation shall be deemed to have been Discharged (as defined
below) from its obligations with respect to the Securities on the 91st day after
the applicable conditions set forth below have been satisfied:
(a) the Corporation shall have deposited or caused to be deposited
irrevocably with the Debenture 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 Debenture Trustee and
the Defeasance Agent, if any, to pay and discharge each
installment of principal of and interest on and premium, if
any, and Liquidated Damages, if any, in respect of the
outstanding Securities on the dates such installments of
principal and interest (and premium, if any) and Liquidated
Damages, if any, are due;
(b) if the Securities are then listed on any national securities
exchange, the Corporation shall have delivered to the
Debenture Trustee and the Defeasance Agent, if any, an Opinion
of Counsel to the effect that the exercise of the option under
this Section 11.05 would not cause such Securities to be
delisted from such exchange;
(c) no Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such
deposit; and
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(d) the Corporation shall have delivered to the Debenture 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 11.05 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.
"Discharged" means that the Corporation 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 Debenture Trustee, at the expense of the
Corporation, shall execute proper instruments acknowledging the same), except
(1) the rights of holders of Securities to receive, from the trust fund
described in clause (a) above, payment of the principal of and the interest and
premium, if any, and Liquidated Damages, if any, on the Securities when such
payments are due; (2) the Corporation's obligations with respect to the
Securities under Sections 2.07, 2.08, 5.02 and 11.04; and (3) the rights,
powers, trusts, duties and immunities of the Debenture Trustee hereunder.
"Defeasance Agent" means another financial institution which is
eligible to act as Debenture Trustee hereunder and which assumes all of the
obligations of the Debenture Trustee necessary to enable the Debenture Trustee
to act hereunder. In the event such a Defeasance Agent is appointed pursuant to
this Section, the following conditions shall apply:
(1) the Debenture 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
(2) the Defeasance Agent shall provide verification to the
Debenture Trustee acknowledging receipt of sufficient money
and/or U.S. Government Obligations to meet the applicable
conditions set forth in this Section 11.05.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of or premium, if any, or
interest (including Compounded Interest and Additional Sums, if any) or
Liquidated Damages, if any, 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 Corporation in this Indenture, or in any Security,
or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, employee, officer or director, as such,
past, present or future, of the Corporation or of any successor Person to the
Corporation, either directly or through the Corporation or any successor Person
to the Corporation, whether by virtue of any constitution, statute or rule of
law, or by the
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enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of the Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Successors.
All of the covenants, stipulations, promises and agreements of the
Corporation contained in this Indenture shall also bind the Corporation's
successors and assigns whether so expressed or not.
SECTION 13.02 Official Acts by Successor Corporation.
Any act or proceeding that, by any provision of this Indenture, is
authorized or required to be done or performed by any board, committee or
officer of the Corporation 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 Corporation.
SECTION 13.03 Surrender of Corporation Powers.
The Corporation by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Debenture Trustee
may surrender any of the powers reserved to the Corporation hereunder, and
thereupon such power so surrendered shall terminate both as to the Corporation,
as the case may be, and as to any successor Person.
SECTION 13.04 Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Debenture Trustee or by the
holders of Securities on the Corporation may be given or served by being
deposited postage prepaid by first class mail, registered or certified mail,
overnight courier service or conformed telecopy addressed (until another address
is filed by the Corporation with the Debenture Trustee for the purpose) to
Astoria Financial Corporation at One Astoria Federal Plaza, Lake Success, New
York 11042 Attention: Alan P. Eggleston, Esq. Any notice, direction, request or
demand by any Securityholder to or upon the Debenture Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in
writing at the office of Wilmington Trust Company at Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration (unless another address is provided by the Debenture Trustee to
the Corporation for such purpose). Any notice or communication to a
Securityholder shall be mailed by first class mail to his or her address shown
on the Security Register kept by the security registrar for the Securities.
Notices required to be given to the Debenture Trustee or the Authenticating
Agent shall be in writing, personally delivered or mailed first-class postage
prepaid to each of the foregoing, or at such other address as shall be
designated by written notice to the other parties.
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SECTION 13.05 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
conflict of law principles thereof.
SECTION 13.06 Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Corporation to the Debenture
Trustee to take any action under any of the provisions of this Indenture, the
Corporation shall furnish to the Debenture 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 Debenture Trustee with respect to compliance with a condition
or covenant provided for in this Indenture (except certificates delivered
pursuant to Section 3.05) shall include (1) a statement that the Person making
such certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 13.07 Business Days.
In any case where the date of payment of principal of (or premium, if
any) or interest on the Securities is not a Business Day, the payment of such
principal of (or premium, if any) or interest on the Securities will not be made
on such date but will be made on the next succeeding Business Day, except if
such Business Day is in the next succeeding calendar year, such payment will be
made on the immediately preceding Business Day, with the same force and effect
as if made on the original date of payment, and no interest shall accrue for the
period from and after such date.
SECTION 13.08 Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 318,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 13.09 Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
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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.
SECTION 13.12 Assignment.
The Corporation 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 Corporation, provided that, in the event of any
such assignment, the Corporation will remain liable for all such obligations.
Subject to the foregoing, this Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns. This
Indenture may not otherwise be assigned by the parties thereto.
SECTION 13.13 Acknowledgment of Rights.
The Corporation acknowledges that, with respect to any Securities held
by the 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 the Trust, any holder of Capital Securities may institute
legal proceedings, subject to Section 5.09, directly against the Corporation 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
Corporation to pay principal of (or premium, if any) or interest on the
Securities when due, the Corporation 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 an aggregate principal amount equal to the aggregate
liquidation amount of the Capital Securities of such holder on or after the
respective due date specified in the Securities.
ARTICLE XIV
PREPAYMENT OF SECURITIES
SECTION 14.01 Special Event Prepayment.
If, prior to the Initial Optional Redemption Date, a Special Event has
occurred and is continuing, then notwithstanding Section 14.02(a) but subject to
Section 14.02(c), the Corporation shall have the right, at any time within 90
days following the occurrence of such Special Event, upon
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(i) not less than 45 days' written notice to the Debenture Trustee 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), at the Special Event
Prepayment Price. Following a Special Event, the Corporation shall take such
action as is necessary to promptly determine the Special Event Prepayment Price,
including, without limitation, the appointment of a Quotation Agent. The Special
Event Prepayment Price shall be paid prior to 12:00 noon, New York City time, on
the date of such prepayment or such earlier time as the Corporation determines,
provided that the Corporation shall deposit with the Debenture Trustee an amount
sufficient to pay the Special Event Prepayment Price by 10:00 a.m., New York
City time, on the date such Special Event Prepayment Price is to be paid.
SECTION 14.02 Optional Prepayment by Corporation.
(a) Subject to Sections 14.02(b) and (c), the Corporation shall have
the right to prepay the Securities, in whole or in part, at any time on or after
the Initial Optional Redemption Date, upon (i) not more than 45 days' written
notice to the Debenture Trustee and (ii) not less than 30 days and not more than
60 days' written notice to the Securityholders, at the prepayment prices set
forth below plus, in each case, accrued and unpaid interest thereon (including
Compounded Interest and Additional Sums, if any) to the applicable date of
prepayment (the "Optional Prepayment Price"), if prepaid during the 12-month
period beginning [November 1] of the years indicated below.
Year Percentage of Principal
---- -----------------------
2009 104.875%
2010 104.388%
2011 103.900%
2012 103.413%
2013 102.925%
2014 102.438%
2015 101.950%
2016 101.463%
2017 100.975%
2018 100.488%
2019 and thereafter 100.000%
If the Securities are only partially prepaid pursuant to this Section
14.02, the Securities to be prepaid shall be selected on a pro rata basis not
more than 60 days prior to the date fixed for prepayment from the outstanding
Securities not previously called for prepayment; provided, however, that with
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respect to Securityholders that would be required to hold Securities with an
aggregate principal amount of less than $100,000 but more than an aggregate
principal amount of zero as a result of such pro rata prepayment, the
Corporation shall prepay Securities of each such Securityholder so that after
such prepayment such Securityholder shall hold Securities either with an
aggregate principal amount of at least $100,000 or such Securityholder no longer
holds any Securities, and shall use such method (including, without limitation,
by lot) as the Corporation shall deem fair and appropriate; provided, further,
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that any such proration may be made on the basis of the aggregate principal
amount of Securities held by each Securityholder and may be made by
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making such adjustments as the Corporation deems fair and appropriate in order
that only Securities in denominations of $1,000 or integral multiples thereof
shall be prepaid. The Optional Prepayment Price shall be paid prior to 12:00
noon New York City time, on the date of such prepayment or at such earlier time
as the Corporation determines, provided that the Corporation shall deposit with
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the Debenture Trustee an amount sufficient to pay the Optional Prepayment Price
by 10:00 a.m., New York City time, on the date such Optional Prepayment Price is
to be paid.
(b) Notwithstanding the first sentence of Section 14.02(a), upon the
entry of an order for dissolution of the 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 the Initial Optional Redemption
Date, at the applicable Optional Prepayment Price and otherwise in accordance
with this Article XIV.
(c) Any prepayment of Securities pursuant to Section 14.01 or Section
14.02 shall be subject to the Corporation obtaining any and all required
regulatory approvals.
SECTION 14.03 No Sinking Fund.
The Securities are not entitled to the benefit of any sinking fund.
SECTION 14.04 Notice of Prepayment; Selection of Securities.
In case the Corporation 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 to be so 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 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 where 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 that has not been prepaid will be issued.
By 10:00 a.m., New York City time, on the prepayment date specified in
the notice of prepayment given as provided in this Section, the Corporation will
deposit with the Debenture 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 Prepayment Price.
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SECTION 14.05 Payment of Securities Called for Prepayment.
If notice of prepayment has been given as provided in Section 14.04,
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 Prepayment Price (subject to the rights of holders
of Securities at 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 Corporation shall default in the payment of such
Securities at the Prepayment Price) interest (including Compounded Interest and
Additional Sums, if any) and Liquidated Damages, if any, 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 paid
and prepaid by the Corporation at the applicable Prepayment Price, (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 prepaid in part only, the Corporation
shall execute and the Debenture Trustee shall authenticate and make available
for delivery to the holder thereof, at the expense of the Corporation, a new
Security or Securities of authorized denominations, in principal amount equal to
the portion of the Security so presented that has not been prepaid.
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01 Agreement to Subordinate
The Corporation 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 Corporation of the principal of, premium, if any,
and interest (including Compounded Interest and Additional Sums, if any) and
Liquidated Damages, if any, on all Securities issued hereunder shall, to the
extent and in the manner hereinafter set forth, be subordinated and subject in
right of payment to the prior payment in full of all Allocable Amounts then due
and payable in respect of 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 15.02 Default on Senior Indebtedness.
In the event and during the continuation of any default by the
Corporation 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 and such
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acceleration has not been rescinded or canceled, then, in either case, no
payment shall be made by the Corporation with respect to the principal
(including prepayment payments) of (or premium, if any) or interest on the
Securities (including Compounded Interest and Additional Sums, if any, and
Liquidated Damages, if any, or any other amounts which may be due on the
Securities pursuant to the terms hereof or thereof).
In the event of the acceleration of the maturity of the Securities,
then no payment shall be made by the Corporation with respect to the principal
(including prepayment payments) of (or premium, if any) or interest on the
Securities (including Compounded Interest and Additional Sums, if any, and
Liquidated Damages, if any, or any other amounts which may be due on the
Securities pursuant to the terms hereof or thereof) until the holders of all
Senior Indebtedness outstanding at the time of such acceleration shall receive
payment, in full, of all Allocable Amounts due on or in respect of such Senior
Indebtedness (including any amounts due upon acceleration).
In the event that, notwithstanding the foregoing, any payment is
received by the Debenture Trustee, or any Securityholder, when such payment is
prohibited by the preceding paragraphs of this Section 15.02, such payment shall
be held in trust for the benefit of, and shall be paid over or delivered by the
Debenture Trustee (if the notice requested by Section 15.06 has been received by
the Debenture Trustee) or by any Securityholder, 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 of
the Allocable Amounts in respect of such Senior Indebtedness and to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Debenture 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
Debenture Trustee shall be paid to the holders of such Senior Indebtedness.
SECTION 15.03 Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Corporation or distribution of assets of the
Corporation of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution, winding-up, liquidation or reorganization of
the Corporation, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, the holders of all Senior Indebtedness of the
Corporation will first be entitled to receive payment in full of Allocable
Amounts due on or in respect of such Senior Indebtedness, before any payment is
made by the Corporation on account of the principal of (or premium, if any) or
interest on the Securities (including Compounded Interest and Additional Sums
(if any) and Liquidated Damages, if any, or any other amounts which may be due
on the Securities pursuant to the terms hereof or thereof); and upon any such
dissolution, winding-up, liquidation or reorganization, any payment by the
Corporation, or distribution of assets of the Corporation of any kind or
character, whether in cash, property or securities, which the Securityholders or
the Debenture Trustee would be entitled to receive from the Corporation, except
for the provisions of this Article XV, shall be paid by the Corporation 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
Debenture Trustee under the Indenture if received by them or it, directly to the
holders of Senior Indebtedness of the Corporation (pro rata to such holders on
the basis of the respective Allocable Amounts of Senior Indebtedness held by
such holders, as calculated by the Corporation) or their representative or
representatives, or to the trustee or trustees under any
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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 such Allocable Amounts of Senior Indebtedness in full, in
money or moneys 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 Debenture
Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Corporation of any kind or character prohibited by
the foregoing, whether in cash, property or securities, shall be received by the
Debenture Trustee, or any Securityholder, before the Allocable Amounts of all
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 by the Debenture
Trustee (if the Notice requested by Section 15.06 has been received by the
Debenture Trustee) or by any Securityholder, to the holders of such Senior
Indebtedness 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, as calculated by the Corporation, for application to the payment of all
Allocable Amounts of Senior Indebtedness remaining unpaid to the extent
necessary to pay all Allocable Amounts due on or 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 Corporation as
reorganized or readjusted, or securities of the Corporation 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 Corporation with, or the merger of the
Corporation into, another Person or the liquidation or dissolution of the
Corporation 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 15.03 if such other Person shall, as a part of such consolidation,
merger, sale, conveyance, transfer or lease, comply with the conditions stated
in Article X of this Indenture. Nothing in Section 15.02 or in this Section
15.03 shall apply to claims of, or payments to, the Debenture Trustee under or
pursuant to Section 6.06 of this Indenture.
SECTION 15.04 Subrogation.
Subject to the payment in full of all Allocable Amounts 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 Corporation, 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
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which the Securityholders or the Debenture 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 Debenture Trustee, shall, as
between the Corporation, its creditors other than holders of Senior Indebtedness
of the Corporation, and the holders of the Securities, be deemed to be a payment
by the Corporation 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.
Nothing contained in this Article XV or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Corporation,
its creditors other than the holders of Senior Indebtedness of the Corporation,
and the holders of the Securities, the obligation of the Corporation, which is
absolute and unconditional, to pay to the holders of the Securities the
principal of (and premium, if any) and interest (including Compounded Interest
and Additional Sums, if any) and Liquidated Damages, if any, 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 Corporation, as the case may be, other than
the holders of Senior Indebtedness of the Corporation, as the case may be, nor
shall anything herein or therein prevent the Debenture Trustee or the holder of
any Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article XV of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Corporation, as the case may be, received upon the
exercise of any such remedy.
SECTION 15.05 Debenture Trustee to Effectuate Subordination.
Each Securityholder, by such Securityholder's acceptance thereof,
authorizes and directs the Debenture Trustee on such Securityholder's behalf to
take such action (as the Debenture Trustee, in its discretion, deems necessary
or appropriate, upon instruction or otherwise) to effectuate the subordination
provided in this Article XV and appoints the Debenture Trustee such
Securityholder's attorney-in-fact for any and all such purposes.
SECTION 15.06 Notice by the Corporation.
The Corporation shall give prompt written notice to a Responsible
Officer of the Debenture Trustee of any fact known to the Corporation that would
prohibit the making of any payment of monies to or by the Debenture 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 Debenture 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 Debenture Trustee in respect of the Securities pursuant to the
provisions of this Article XV, unless and until a Responsible Officer of the
Debenture Trustee shall have received written notice thereof from the
Corporation or a holder or holders of Senior Indebtedness or from any trustee
therefor; and before the receipt of any such written notice, the Debenture
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,
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that if the Debenture Trustee shall not have received the notice provided for in
this Section 15.06 at least two Business Days prior to the date upon which, by
the terms hereof, any money may become payable for any purpose (including,
without limitation, the payment of the principal of (or premium, if any) or
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interest (including Compounded Interest and Additional Sums, if any) and
Liquidated Damages, if any, on any Security), then, anything herein contained to
the contrary notwithstanding, the Debenture Trustee shall have full power and
authority to receive such money and to apply the same to the purposes for which
they were received, and shall not be affected by any notice to the contrary that
may be received by it within two Business Days prior to such date.
The Debenture Trustee, subject to the provisions of Article VI of this
Indenture, shall be entitled to conclusively rely on a written notice delivered
to it by a Person representing himself to be a holder of Senior Indebtedness of
the Corporation (or a trustee on behalf of such holder), as the case may be, to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee on behalf of any such holder or holders. In the event
that the Debenture 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 Debenture Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Debenture 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 Debenture 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 Corporation referred
to in this Article XV, the Debenture Trustee, subject to the provisions of
Article VI of this Indenture, and the Securityholders shall be entitled to
conclusively rely upon any order or decree 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 Debenture 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 Corporation, 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 15.07 Rights of the Debenture Trustee; Holders of Senior
Indebtedness.
The Debenture 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 Debenture
Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Corporation,
the Debenture Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article XV, and
no implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the Debenture Trustee.
The Debenture Trustee shall not be deemed to owe any fiduciary duty to the
holders of such Senior Indebtedness and, subject to the provisions of Article VI
of this Indenture, the Debenture Trustee shall not be liable to any holder of
such Senior Indebtedness if it shall pay over or deliver to Securityholders, the
Corporation or any other Person money or assets to which any holder of such
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 Debenture Trustee under or pursuant to Section 6.06.
SECTION 15.08 Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness of
the Corporation 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 Corporation, as the case may be, or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Corporation, as the
case may be, with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness of the Corporation may, at any time and from
time to time, without the consent of or notice to the Debenture 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
such 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 Corporation, as the case may be, and any
other Person.
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01 Extension of Interest Payment Period.
------------------------------------
So long as no Event of Default has occurred and is continuing, the
Corporation 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 10 consecutive
semi-annual periods, including the first such semi-annual period during such
extension period (the "Extended Interest Payment Period"), during which Extended
Interest Payment Period no interest shall be due and payable, provided that no
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Extended Interest Payment 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 16.01, will
bear interest thereon at the Coupon Rate compounded semi-annually for each
semi-annual period during the Extended Interest Payment Period ("Compounded
Interest"). At the end of the Extended Interest Payment Period, the Corporation
shall pay all interest accrued and unpaid on the Securities, including any
Additional Sums 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 record date immediately preceding
the end of the Extended Interest Payment Period. Before the
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termination of any Extended Interest Payment Period, the Corporation may further
defer payments of interest by further extending such Extended Interest Payment
Period, provided that such Extended Interest Payment Period, together with all
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such previous and further extensions within such Extended Interest Payment
Period, shall not (i) exceed 10 consecutive semi-annual periods, including the
first such semi-annual period during such Extended Interest Payment Period, (ii)
end on a date other than an Interest Payment Date or (iii) extend beyond the
Maturity Date of the Securities. Upon the termination of any Extended Interest
Payment Period and the payment of all amounts then due, the Corporation may
commence a new Extended Interest Payment Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extended Interest
Payment Period, except at the end thereof, but the Corporation may prepay at any
time all or any portion of the interest accrued during an Extended Interest
Payment Period.
SECTION 16.02 Notice of Extension.
(a) If the Property Trustee is the only holder of the Securities at the
time the Corporation elects to commence an Extended Interest Payment Period, the
Corporation shall give written notice to the Administrative Trustees, the
Property Trustee and the Debenture Trustee of its election to commence such
Extended Interest Payment Period at least five Business Days before the earlier
of (i) the next succeeding date on which Distributions on the Trust Securities
would have been payable, and (ii) the date the Property Trustee 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, 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 Corporation elects to commence an Extended Interest Payment Period,
the Corporation shall give the holders of the Securities and the Debenture
Trustee written notice of its election of such Extended Interest Payment Period
at least 10 Business Days before the earlier of (i) the next succeeding Interest
Payment Date, and (ii) the date the Debenture Trustee is required to give notice
of the record or payment date of such interest payment to any national
securities exchange.
(c) The semi-annual period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 16.02 shall be counted as one of the 10
semi-annual periods permitted in the maximum Extended Interest Payment Period
permitted under Section 16.01.
Wilmington Trust Company 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.
ASTORIA FINANCIAL CORPORATION
By: /s/ George L. Engelke, Jr.
------------------------------------
George L. Engelke, Jr.
Chairman of the Board, President and
Chief Executive Officer
WILMINGTON TRUST COMPANY,
as Debenture Trustee
By: /s/ James P. Lawler
------------------------------------
James P. Lawler
Vice President
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EXHIBIT A
(FORM OF FACE OF SECURITY)
[IF THIS 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 THE DEPOSITORY TRUST COMPANY ("DTC") OR A NOMINEE
OF DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF
THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO
DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH ASTORIA FINANCIAL
CORPORATION (THE "CORPORATION") OR ANY "AFFILIATE" OF THE CORPORATION WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE
CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL
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"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7)
OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT, SUBJECT TO THE RIGHT OF THE CORPORATION PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO THE
CORPORATION, AND (ii) PURSUANT TO CLAUSE (D) TO REQUIRE THAT A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE REVERSE OF THIS SECURITY IS COMPLETED AND
DELIVERED BY THE TRANSFEREE TO THE CORPORATION. SUCH HOLDER FURTHER AGREES THAT
IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THE SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS
HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000. ANY ATTEMPTED
TRANSFER OF SECURITIES IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS
THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE
VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE
DEEMED NOT TO BE THE HOLDER OF SUCH SECURITIES FOR ANY PURPOSE, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF PRINCIPAL OF OR INTEREST ON SUCH SECURITIES, AND
SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH
SECURITIES.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES,
REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL
RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH
A "PLAN"), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON
OF ANY PLAN'S INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING "PLAN ASSETS" OF
ANY PLAN MAY ACQUIRE OR HOLD THE SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH
PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38,
90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF
THIS SECURITY IS NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE
CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THE
SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS
PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN
WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF
THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN
EMPLOYEE
A-2
<PAGE>
BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY
EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE
WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND
BY THE REGISTRATION RIGHTS AGREEMENT, DATED AS OF OCTOBER __, 1999, BY AND AMONG
THE TRUST, THE ISSUER AND THE INITIAL PURCHASER NAMED THEREIN, AS AMENDED FROM
TIME TO TIME.
A-3
<PAGE>
SUBORDINATED DEBENTURE CERTIFICATE
ASTORIA FINANCIAL CORPORATION
CUSIP No.: _____________
$
9.75% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE NOVEMBER 1, 2029, Series A/Series B
ASTORIA FINANCIAL CORPORATION, a Delaware corporation (the
"Corporation," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Astoria
Capital Trust I or registered assigns, the principal sum of $_______
(________________________________________________) on November 1, 2029 (the
"Maturity Date"), unless previously prepaid, and to pay interest on the
outstanding principal amount hereof from October ___, 1999, 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, semi-annually (subject to
deferral as set forth herein) in arrears on May 1st and November 1st of each
year, commencing May 1, 2000 at the rate of ___% per annum, until the principal
hereof shall have become due and payable, and 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 semi-annually ("Compounded
Interest"). The amount of interest payable hereon shall be computed on the basis
of a 360-day year of twelve 30-day months. 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 (as defined in the Indenture), then the payment payable on
such date will be made on the next succeeding day that is a 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 (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. Pursuant to the Indenture, in
certain circumstances the Corporation will be required to pay Additional Sums
(as defined in the Indenture) with respect to this Security. Pursuant to the
Registration Rights Agreement and the Liquidated Damages Agreement, in certain
limited circumstances the Corporation will be required to pay Liquidated Damages
(as defined in the Registration Rights Agreement and the Liquidated Damages
Agreement) with respect to this Security.
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 at the
close of business on the 15th day of the month immediately preceding 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 Debenture 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
A-4
<PAGE>
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.
The principal of (and premium, if any) and interest (including
Compounded Interest and Additional Sums, if any) and Liquidated Damages, if any,
on this Security shall be payable at the office or agency of the Debenture
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 Corporation by (i) check mailed to the holder at such address as
shall appear in the Security Register or (ii) transfer to an account maintained
by the Person entitled thereto, provided that proper written transfer
instructions have been received by the relevant record date. Notwithstanding the
foregoing, so long as the holder of this Security is the Property Trustee of
Astoria Capital Trust I, the payment of the principal of (and premium, if any)
and interest (including Compounded Interest and Additional Sums, if any) and
Liquidated Damages, if any, on this Security will be made at such place and to
such account as may be designated by such 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 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 Debenture 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 Debenture 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
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 Debenture
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-5
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed and sealed this 28 day of October, 1999.
ASTORIA FINANCIAL CORPORATION
By: ____________________________________
George L. Engelke, Jr.
Chairman of the Board, President and
Chief Executive Officer
Attest:
By: _________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the ___% Junior Subordinated Deferrable Interest Debentures,
Series A/Series B, of ASTORIA FINANCIAL CORPORATION referred to in the
within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Debenture Trustee
Dated: ------------------ By: ____________________________________
Authorized Signatory
A-6
<PAGE>
(FORM OF REVERSE OF SECURITY)
This Security is one of the Securities of the Corporation (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 October
___, 1999 (the "Indenture"), duly executed and delivered between the Corporation
and Wilmington Trust Company, as Debenture Trustee (the "Debenture Trustee"), to
which Indenture reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Debenture Trustee, the Corporation and the holders of the Securities.
Upon the occurrence and continuation of a Special Event (as defined in
the Indenture) prior to November 1, 2009 (the "Initial Optional Redemption
Date"), the Corporation shall have the right, at any time within 90 days
following the occurrence of such Special Event, 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 the greater of (i) 100% of
the principal amount of the Securities to be prepaid, or (ii) the sum, as
determined by a Quotation Agent, of the present values of the remaining
scheduled payments of principal and interest on such Securities, discounted to
the prepayment date on a semi- annual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Adjusted Treasury Rate, plus, in the case of
each of (i) and (ii), any accrued and unpaid interest (including Compounded
Interest and Additional Sums, if any) and Liquidated Damages, if any, thereon to
the date of such prepayment.
In addition, the Corporation shall have the right to prepay this
Security, in whole or in part, at any time on or after the Initial Optional
Redemption Date (an "Optional Prepayment"), at the prepayment prices set forth
below plus, in each case, accrued and unpaid interest thereon (including
Compounded Interest and Additional Sums, if any) and Liquidated Damages, if any,
thereon to the applicable date of prepayment (the "Optional Prepayment Price"),
if prepaid during the 12-month period beginning November 1, of the years
indicated below.
Year Percentage of Principal
---- -----------------------
2009 %
2010 %
2011 %
2012 %
2013 %
2014 %
2015 %
2016 %
2017 %
2018 %
2019 and thereafter 100.00%
A-7
<PAGE>
The Prepayment Price shall be paid prior to 12:00 noon, New York City
time, on the date of such prepayment or at such earlier time as the Corporation
determines, provided that the Corporation shall deposit with the Debenture
--------
Trustee an amount sufficient to pay the 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' prior written notice.
If the Securities are only partially prepaid by the Corporation
pursuant to an Optional Prepayment, the particular Securities to be prepaid
shall be selected on a pro rata basis from the outstanding Securities not
previously called for prepayment; provided, however, that with respect to
-------- -------
Securityholders that would be required to hold Securities with an aggregate
principal amount of less than $100,000 but more than an aggregate principal
amount of zero as a result of such pro rata prepayment, the Corporation shall
prepay Securities of each such Securityholder so that after such prepayment such
Securityholder shall hold Securities either with an aggregate principal amount
of at least $100,000 or such Securityholder no longer holds any Securities and
shall use such method (including, without limitation, by lot) as the Corporation
shall deem fair and appropriate; provided, further, that any such proration may
-------- -------
be made on the basis of the aggregate principal amount of Securities held by
each Securityholder thereof and may be made by making such adjustments as the
Corporation deems fair and appropriate in order that only Securities in
denominations of $1,000 or integral multiples thereof shall be prepaid. In the
event of prepayment of this Security in part only, a new Security or Securities
for the portion hereof that has not been prepaid will be issued in the name of
the holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any prepayment of Securities by the
Corporation shall be subject to the receipt of any and all required regulatory
approvals.
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 Corporation and the
Debenture 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) change the Maturity Date of any Security, or reduce the rate or
extend the time of payment of interest thereon (subject to Article XVI of the
Indenture), or reduce the principal amount thereof, or change any of the
prepayment provisions or make the principal thereof or any interest or premium
thereon 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 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 affected thereby, 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
A-8
<PAGE>
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 under which 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 Corporation,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest (including Compounded Interest and Additional Sums, if any)
and Liquidated Damages, if any, on this Security at the time and place and at
the rate and in the money herein prescribed.
So long as no Event of Default shall have occurred and be continuing,
the Corporation 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 (an "Extended Interest Payment Period") of such
Securities for a period not (i) exceeding 10 consecutive semi-annual periods,
including the first such semi-annual period during such extension period, (ii)
extending beyond the Maturity Date of the Securities or (iii) ending on a date
other than an Interest Payment Date, at the end of which period the Corporation
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 Extended Interest Payment Period, the Corporation may further defer
payments of interest by further extending such Extended Interest Payment Period,
provided that such Extended Interest Payment Period, together with all such
- --------
previous and further extensions within such Extended Interest Payment Period,
(i) shall not exceed 10 consecutive semi-annual periods including the first
semi-annual period during such Extended Interest Payment Period, (ii) shall not
end on any date other than an Interest Payment Date, and (iii) shall not extend
beyond the Maturity Date of the Securities. Upon the termination of any such
Extended Interest Payment Period and the payment of all accrued and unpaid
interest and any additional amounts then due, the Corporation may commence a new
Extended Interest Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest Payment Period,
except at the end thereof, but the Corporation may prepay at any time all or any
portion of the interest accrued during an Extended Interest Payment Period.
The Corporation 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 Corporation's capital stock,
(ii) make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities (including other Debentures) of
the Corporation 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 Corporation of the debt securities of any Subsidiary of the Corporation
(including Other Guarantees) if such guarantee ranks pari passu with or junior
in right of payment to the Securities (other than (a) dividends or distributions
of Corporation's capital stock (which includes Common Stock and preferred
stock), (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)
A-9
<PAGE>
payments under the Capital Securities Guarantee, as defined in the Indenture,
(d) as a result of a reclassification of the Corporation's capital stock or the
exchange or conversion of one class or series of the Corporation's capital stock
for another class or series of the Corporation's capital stock, (e) the purchase
of fractional interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, and (f) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Corporation's benefit or
compensation plans for its directors, officers or employees or any of the
Corporation's dividend reinvestment plans), if at such time (1) there shall have
occurred any event of which the Corporation 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 and (b) in respect of which the Corporation shall not have
taken reasonable steps to cure, (2) if such Securities are held by the Property
Trustee of Astoria Capital Trust I, the Corporation shall be in default with
respect to its payment of any obligations under the Capital Securities Guarantee
or (3) the Corporation shall have given notice of its election to exercise its
right to commence an Extended Interest Payment Period, and shall not have
rescinded such Notice, and such Extended Interest Payment Period or any
extension thereof shall have commenced and be continuing.
Subject to (i) the Corporation having received any required regulatory
approvals and (ii) the Administrative Trustees of Astoria Capital Trust I having
received an opinion of counsel to the effect that such distribution will not
cause the holders of Capital Securities to recognize gain or loss for federal
income tax purposes, the Corporation will have the right at any time to
liquidate the Trust and, after satisfaction of liabilities of creditors of the
Trust as required by applicable law, to cause the Securities to be distributed
to the holders of the Trust Securities in liquidation of the Trust.
The Securities are issuable only in registered form without coupons in
minimum denominations of $100,000 and multiples of $1,000 in excess thereof. 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 Corporation,
upon surrender of this Security for registration of transfer at the office or
agency of the Corporation in Wilmington, Delaware accompanied by a written
instrument or instruments of transfer in form satisfactory to the Corporation or
the Debenture Trustee duly executed by the holder hereof or his or her attorney
duly authorized in writing, and thereupon one or more new Securities of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
made for any such registration of transfer, but the Corporation 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 Corporation, the Debenture Trustee, any authenticating agent, any paying
agent, any transfer agent and the security registrar may deem and treat the
holder hereof as the absolute 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 Securities) 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 Corporation nor the Debenture Trustee nor any authenticating
agent nor any paying agent nor any transfer agent nor any security registrar
shall be affected by any notice to the contrary.
A-10
<PAGE>
No recourse shall be had for the payment of the principal of or
premium, if any, or interest (including Compounded Interest and Additional Sums,
if any) or Liquidated Damages, if any, 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, employee, officer or director,
past, present or future, as such, of the Corporation 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.
All terms used in this Security that are defined in the Indenture 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 PRINCIPLES THEREOF.
A-11
<PAGE>
EXHIBIT 4.3
CERTIFICATE OF TRUST
OF
ASTORIA CAPITAL TRUST I
This Certificate of Trust of Astoria Capital Trust I (the "Trust"), is
being duly executed and filed by the undersigned trustee to form a business
trust under the Delaware Business Trust Act (12 Del. C. (S) 3801 et seq.) (the
--- - -- ---
"Act").
(a) Name. The name of the business trust formed hereby is Astoria Capital
----
Trust I.
(b) Delaware Trustee. The name and business address of the trustee of the
----------------
Trust in the State of Delaware is Wilmington Trust Company, Rodney Square North,
1100 N. Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate
Trust Administration.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Trust
in accordance with Section 3811 of the Act.
WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as Trustee
By: /s/ Donald G. MacKelcan
-----------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT 4.4
DECLARATION OF TRUST
OF
ASTORIA CAPITAL TRUST I
THIS DECLARATION OF TRUST is made as of October 18, 1999 (this
"Declaration"), by and among Astoria Financial Corporation, a Delaware
corporation, as sponsor (the "Sponsor"), and Wilmington Trust Company, a
Delaware banking corporation, as Delaware trustee (the "Trustee"). The Sponsor
and the Trustee hereby agree as follows:
1. The trust created hereby shall be known as "Astoria Capital Trust
I" (the "Trust"), in which name the Trustee or the Sponsor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. The Trustee hereby acknowledges receipt of such
amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Trustee hereby declares that it will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that
------ -- ---
this Declaration constitute the governing instrument of the Trust. The Trustee
is hereby authorized and directed to execute and file a certificate of trust
with the Secretary of State of the State of Delaware in the form attached to
this Declaration.
3. The Sponsor and the Trustee will enter into an amended and
restated Declaration of Trust satisfactory to each such party to provide for the
contemplated operation of the Trust created hereby and the issuance by the Trust
of the Capital Securities and Common Securities referred to therein. Prior to
the execution and delivery of such amended and restated Declaration of Trust (i)
the Trustee shall not have any duty or obligation hereunder or with respect to
the trust estate, except as otherwise required by applicable law, and (ii) the
Sponsor shall take or cause to be taken any action as may be necessary to obtain
prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise. Notwithstanding the foregoing, the
Trustee may take all actions which the Sponsor deems necessary, convenient or
incidental to effect the transactions contemplated herein. The Trustee shall not
have any duty or obligation under or in connection with this Declaration or any
document contemplated hereby, except as expressly provided by the terms of this
Declaration, and no implied duties or obligations shall be read into this
Declaration against the Trustee. The right of the Trustee to perform any
discretionary act enumerated herein shall not be construed as a duty.
4. The Sponsor hereby agrees to (i) reimburse the Trustee for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts), (ii) indemnify, defend and hold harmless the Trustee and the officers,
directors, employees and agents of the Trustee (collectively, including the
Trustee in its individual capacity, the "Indemnified Persons") from and against
any and all losses, damages, liabilities, claims, actions, suits, costs,
expenses, disbursements (including the reasonable fees and expenses of counsel),
taxes and penalties of any kind and nature
<PAGE>
whatsoever (collectively, "Expenses"), to the extent that such Expenses arise
out of or are imposed upon or asserted at any time against such Indemnified
Persons with respect to the performance of this Declaration, the creation,
operation, administration or termination of the Trust, or the transactions
contemplated hereby; provided, however, that the Sponsor shall not be required
-------- -------
to indemnify an Indemnified Person for Expenses to the extent such Expenses
result from the willful misconduct, bad faith or gross negligence of such
Indemnified Person, and (iii) advance to each such Indemnified Person Expenses
(including reasonable fees and expenses of counsel) incurred by such Indemnified
Person, in defending any claim, demand, action, suit or proceeding prior to the
final disposition of such claim, demand, action, suit or proceeding upon receipt
by the Sponsor of an undertaking, by or on behalf of such Indemnified Person, to
repay such amount if it shall be determined that such Indemnified Person is not
entitled to be indemnified therefor under this Section 4. The obligations of the
Sponsor under this Section 4 shall survive the resignation or removal of the
Trustee, shall survive the termination, amendment, supplement, and/or
restatement of this Declaration, and shall survive the transfer by the Sponsor
of any or all of its interest in the Trust pursuant to Section 5 below or
otherwise.
5. The Sponsor, as sponsor of the Trust, is hereby authorized, in
its discretion, (i) to prepare and distribute one or more offering memoranda in
preliminary and final form, including any necessary or desirable amendments,
relating to the offering and sale of Capital Securities of the Trust in a
transaction exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and such forms or filings as may be required
by the 1933 Act, the Securities Exchange Act of 1934, as amended, or the Trust
Indenture Act of 1939, as amended, in each case relating to the Capital
Securities of the Trust; (ii) to prepare, execute and file on behalf of the
Trust, such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
that shall be necessary or desirable to register or establish the exemption from
registration of the Capital Securities of the Trust under the securities or
"Blue Sky" laws of such jurisdictions as the Depositor, on behalf of the Trust,
may deem necessary or desirable; (iii) to prepare, execute and file an
application, and all other applications, statements, certificates, agreements
and other instruments that shall be necessary or desirable, to have the Capital
Securities listed on the Private Offerings, Resales and Trading through
Automated Linkages ("PORTAL") Market and, if and at such time as determined by
the Depositor, with the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing or quotation of the Capital
Securities of the Trust; (iv) to prepare, execute and deliver letters or
documents to, or instruments for filing with, a depository relating to the
Capital Securities of the Trust; (v) to negotiate, execute, deliver and perform
on behalf of the Trust one or more purchase agreements, registration rights
agreements, dealer/manager agreements, escrow agreements, subscription
agreements and other similar or related agreements providing for or relating to
the sale and issuance of the Capital Securities of the Trust and/or any other
interests in the Trust; and (vi) to prepare, execute and deliver on behalf of
the Trust any and all documents, certificates, papers, instruments and other
writings as it deems desirable in connection with any of the foregoing.
In the event that any filing referred to in this Section 5 is required
by the rules and regulations of Securities and Exchange Commission (the
"Commission"), PORTAL or state securities or Blue Sky laws to be executed on
behalf of the Trust by a trustee, the Trustee, in its
2
<PAGE>
capacity as a trustee of the Trust, so required to execute such filings is
hereby authorized and directed to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that the
Trustee, in its capacity as a trustee of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any such document
unless required to do so by the rules and regulations of the Commission, PORTAL
or applicable state securities or Blue Sky laws.
6. The Trustee is authorized to take such action or refrain from
taking such action under this Declaration as it may be directed in writing by
the Sponsor from time to time; provided, however, that the Trustee shall not be
-------- -------
required to take or refrain from taking any such action if it shall have
determined, or shall have been advised by counsel, that such performance is
likely to involve the Trustee in personal liability or is contrary to the terms
of this Declaration or of any document contemplated hereby to which the Trust or
the Trustee is a party or is otherwise contrary to law. If at any time the
Trustee determines that it requires or desires guidance regarding the
application of any provision of this Declaration or any other document, or
regarding compliance with any direction it received hereunder, then the Trustee
may deliver a notice to the Sponsor requesting written instructions as to the
course of action desired by the Sponsor, and such instructions shall constitute
full and complete authorization and protection for actions taken and other
performance by the Trustee in reliance thereon. Until the Trustee has received
such instructions after delivering such notice, it may refrain from taking any
action with respect to the matters described in such notice.
7. This Declaration may be executed in one or more counterparts.
8. The number of trustees of the Trust initially shall be one (1)
and thereafter the number of trustees of the Trust shall be such number as shall
be fixed from time to time by a written instrument signed by the Sponsor which
may increase or decrease the number of trustees of the Trust; provided, however,
-------- -------
to the extent required by the Business Trust Act, there shall at all times be
one trustee of the Trust that shall either be a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware and otherwise meets the
requirements of applicable law. Subject to the foregoing, the Sponsor is
entitled to appoint or remove without cause any trustee of the Trust at any
time. Any trustee of the Trust may resign upon thirty days' prior notice to the
Sponsor.
9. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
[SIGNATURE PAGE FOLLOWS]
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
ASTORIA FINANCIAL CORPORATION,
as Sponsor
By:/s/ Alan P. Eggleston
------------------------------------------
Name: Alan P. Eggleston
Title: Executive Vice President &
General Counsel
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ Donald G. MacKelcan
----------------------------------------
Name: Donald G. MacKelcan
Title: Vice President
4
<PAGE>
EXHIBIT 4.5
================================================================================
AMENDED AND RESTATED DECLARATION OF TRUST
OF
ASTORIA CAPITAL TRUST I
Dated as of October 28, 1999
================================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS
<S> <C> <C>
SECTION 1.1 Definitions..................................................................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application............................................................10
SECTION 2.2 Lists of Holders of Securities..............................................................10
SECTION 2.3 Reports by the Property Trustee.............................................................11
SECTION 2.4 Periodic Reports to Property Trustee........................................................11
SECTION 2.5 Evidence of Compliance with Conditions Precedent............................................11
SECTION 2.6 Events of Default; Waiver...................................................................11
SECTION 2.7 Default; Notice.............................................................................13
ARTICLE III
ORGANIZATION
SECTION 3.1 Name........................................................................................14
SECTION 3.2 Office......................................................................................14
SECTION 3.3 Purpose.....................................................................................14
SECTION 3.4 Authority...................................................................................14
SECTION 3.5 Title to Property of the Trust..............................................................14
SECTION 3.6 Powers and Duties of the Administrative Trustees............................................14
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees........................................18
SECTION 3.8 Powers and Duties of the Property Trustee...................................................19
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.................................21
SECTION 3.10 Certain Rights of Property Trustee..........................................................23
SECTION 3.11 Delaware Trustee............................................................................25
SECTION 3.12 Execution of Documents......................................................................25
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities......................................25
SECTION 3.14 Duration of Trust...........................................................................26
SECTION 3.15 Mergers.....................................................................................26
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.....................................................28
SECTION 4.2 Responsibilities of the Sponsor.............................................................28
SECTION 4.3 Right to Proceed............................................................................29
SECTION 4.4 Right to Dissolve Trust.....................................................................29
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
ARTICLE V
TRUSTEES
<S> <C> <C>
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee...............................................29
SECTION 5.2 Delaware Trustee............................................................................30
SECTION 5.3 Property Trustee; Eligibility...............................................................30
SECTION 5.4 Certain Qualifications of Administrative Trustees and Delaware
Trustee Generally...........................................................................31
SECTION 5.5 Administrative Trustees.....................................................................31
SECTION 5.6 Appointment, Removal and Resignation of Trustees............................................32
SECTION 5.7 Vacancies among Trustees....................................................................34
SECTION 5.8 Effect of Vacancies.........................................................................34
SECTION 5.9 Meetings....................................................................................35
SECTION 5.10 Delegation of Power.........................................................................35
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business.................................35
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions...............................................................................37
ARTICLE VII
ISSUANCE OF SECURITIES
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 Registrar, Paying Agent and Exchange Agent..................................................40
SECTION 7.5 Paying Agent to Hold Money in Trust.........................................................41
SECTION 7.6 Replacement Securities......................................................................41
SECTION 7.7 Outstanding Capital Securities..............................................................41
SECTION 7.8 Capital Securities in Treasury..............................................................42
SECTION 7.9 Temporary Securities........................................................................42
SECTION 7.10 Cancellation................................................................................43
SECTION 7.11 CUSIP Numbers...............................................................................44
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust........................................................................44
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
ARTICLE IX
TRANSFER OF INTERESTS
<S> <C> <C>
SECTION 9.1 Transfer of Securities......................................................................45
SECTION 9.2 Transfer Procedures and Restrictions........................................................46
SECTION 9.3 Deemed Security Holders.....................................................................55
SECTION 9.4 Book-Entry Interests........................................................................56
SECTION 9.5 Notices to Clearing Agency..................................................................57
SECTION 9.6 Appointment of Successor Clearing Agency....................................................57
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability...................................................................................57
SECTION 10.2 Exculpation.................................................................................57
SECTION 10.3 Fiduciary Duty..............................................................................58
SECTION 10.4 Indemnification.............................................................................59
SECTION 10.5 Outside Businesses..........................................................................62
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.................................................................................62
SECTION 11.2 Certain Accounting Matters..................................................................62
SECTION 11.3 Banking.....................................................................................63
SECTION 11.4 Withholding.................................................................................63
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments..................................................................................64
SECTION 12.2 Meetings of the Holders; Action by Written Consent..........................................66
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee..........................................68
SECTION 13.2 Representations and Warranties of Delaware Trustee..........................................68
ARTICLE XIV
REGISTRATION RIGHTS
SECTION 14.1 Registration Rights Agreement; Liquidated Damages...........................................69
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
ARTICLE XV
MISCELLANEOUS
<S> <C> <C>
SECTION 15.1 Notices.....................................................................................69
SECTION 15.2 Governing Law...............................................................................71
SECTION 15.3 Intention of the Parties....................................................................71
SECTION 15.4 Headings....................................................................................71
SECTION 15.5 Successors and Assigns......................................................................71
SECTION 15.6 Partial Enforceability......................................................................71
SECTION 15.7 Counterparts................................................................................71
TERMS OF
9.75% CAPITAL SECURITIES, SERIES A/SERIES B
9.75% COMMON SECURITIES................................................................................I-1
EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE..................................................................A1-1
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE...................................................................A2-1
</TABLE>
iv
<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture
Act of 1939, as Section of
amended Declaration
- --------------- ---------------
<S> <C>
310(a) ................................................................... 5.3
310(b) ................................................................... 5.3(c), 5.3(d)
311(a) ................................................................... 2.2(b)
311(b) ................................................................... 2.2(b)
312(a) ................................................................... 2.2(a)
312(b) ................................................................... 2.2(b)
313 ................................................................... 2.3
314(a) ................................................................... 2.4; 2.7(c); 3.6(j)
314(c) ................................................................... 2.5
315(a) ................................................................... 3.6(j); 3.9
315(b) ................................................................... 2.7(a)
315(c) ................................................................... 3.9(a)
315(d) ................................................................... 3.9(b)
316(a) ................................................................... 2.6
316(c) ................................................................... 3.6(e)
317(a) ................................................................... 3.8(e); 3.8(h)
317(b) ................................................................... 3.8(i); 7.5
</TABLE>
- ----------------------
* This Cross-Reference Table does not constitute part of this Declaration
and shall not affect the interpretation of any of its terms or
provisions.
v
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
ASTORIA CAPITAL TRUST I
Dated as of October 28, 1999
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of October 28, 1999, by and among the Trustees (as defined herein),
the Sponsor (as defined herein) and the Holders (as defined herein), from time
to time, of undivided beneficial interests in the assets of the Trust to be
issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established Astoria Capital
Trust I (the "Trust"), a trust created under the Delaware Business Trust Act
pursuant to a Declaration dated as of October 18, 1999 (the "Original
Declaration"), and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on October 19, 1999, for the sole purpose of issuing and
selling certain securities representing undivided beneficial interests in the
assets of the Trust, investing the proceeds thereof in certain Debentures of the
Debenture Issuer (each as hereinafter defined), and engaging in only those
activities necessary, advisable or incidental thereto; and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original Declaration;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
ratify the actions of each Trustee taken prior to the date hereof;
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 and, in consideration
of the mutual covenants contained herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties,
intending to be legally bound hereby, agree as follows:
<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 or elsewhere herein 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 and each Annex and Exhibit hereto, 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;
(f) a term defined in the Indenture (as defined herein) has the
same meaning when used in this Declaration unless otherwise
defined in this Declaration or the context otherwise requires;
and
(g) a reference to the singular includes the plural and vice
versa.
"Administrative Trustee" 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 Exchange 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 the Global
-------------------
Capital Security registered in the name of a Clearing Agency or its nominee,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 9.4.
2
<PAGE>
"Business Day" means any day other than a Saturday, a Sunday or a day
------------
on which banking institutions in Wilmington, Delaware or New York, New York, are
authorized or required by law or executive order to remain closed.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
------------------
Code, 12 Del. Code (S) 3801 et seq., as it may be amended from time to time, or
-------
any successor legislation.
"Capital Securities" means, collectively, the Series A Capital
------------------
Securities and the Series B Capital Securities.
"Capital Securities Guarantee" means, collectively, the Series A
----------------------------
Capital Securities Guarantee and the Series B Capital Securities Guarantee.
"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 Security Certificate" has the meaning set forth in Section
----------------------------
9.4.
"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 the "Closing Time" as defined in the Purchase
------------
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time, or any successor legislation.
"Commission" means the United States Securities and Exchange
----------
Commission as from time to time constituted, or if at 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 Security Certificate" means a certificate evidencing ownership
---------------------------
of Common Securities, substantially in the form attached as Exhibit A-2.
3
<PAGE>
"Common Securities Guarantee" means the Common Securities Guarantee
---------------------------
Agreement, dated as of the Closing Time, entered into by Astoria Financial
Corporation, with respect to the Common Securities.
"Common Securities Subscription Agreement" means the Common
----------------------------------------
Securities Subscription Agreement, dated as of the Closing Time, between the
Trust and Astoria Financial Corporation relating to the Common Securities.
"Company Indemnified Person" means (a) any Administrative Trustee; (b)
--------------------------
any Affiliate of any Administrative Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Administrative Trustee; or (d) any officer, employee or agent of the Trust or
its Affiliates.
"Corporate Trust Office" means the office of the Property Trustee at
----------------------
which the corporate trust business of the Property Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Declaration is located at Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration.
"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 Astoria Financial Corporation, 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.
"Debenture Subscription Agreement" means the Debenture Subscription
--------------------------------
Agreement, dated as of the Closing Time, between the Debenture Issuer and the
Trust in respect of the Series A Debentures.
"Debenture Trustee" means Wilmington Trust Company, a Delaware banking
-----------------
corporation, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Debentures" means, collectively, the Series A Debentures and the
----------
Series B Debentures.
"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" has the meaning set forth in Section
-----------------------------
7.3(c).
"Delaware Trustee" has the meaning set forth in Section 5.1.
----------------
"Direct Action" has the meaning set forth in Section 3.8(e).
-------------
4
<PAGE>
"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" with respect to the Securities means an Event of
----------------
Default (as defined in the Indenture) that has occurred and is continuing with
respect to the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time, or any successor legislation.
"Exchange Agent" has the meaning set forth in Section 7.4.
--------------
"Exchange Offer" means the offer that may be made pursuant to the
--------------
Registration Rights Agreement (i) by the Trust to exchange Series B Capital
Securities for Series A Capital Securities and (ii) by the Debenture Issuer to
exchange Series B Debentures for Series A Debentures and to execute the Series B
Capital Securities Guarantee in respect of the Series B Capital Securities.
"Federal Reserve Board" means the Board of Governors of the Federal
---------------------
Reserve System.
"Fiduciary Indemnified Person" has the meaning set forth in Section
----------------------------
10.4(b).
"Fiscal Year" has the meaning set forth in Section 11.1.
-----------
"Global Capital Security'' has the meaning set forth in Section
-----------------------
7.3(a).
"Holder" means a Person in whose name a Security or Successor Security
------
is registered on the register maintained by or on behalf of the Registrar, such
Person being a beneficial owner of the Trust within the meaning of the Business
Trust Act.
"Indemnified Person" means a Company Indemnified Person or a
------------------
Fiduciary Indemnified Person.
"Indenture" means the Indenture, dated as of the Closing Time, between
---------
the Debenture Issuer and the Debenture Trustee, as amended from time to time.
"Initial Optional Redemption Date" has the meaning set forth in
--------------------------------
Section 4(b) of Annex I hereto.
"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.
5
<PAGE>
"Investment Company Event" has the meaning set forth in Section 4(c)
------------------------
of Annex I hereto.
"Legal Action" has the meaning set forth in Section 3.6(g).
------------
"Like Amount" has the meaning set forth in Section 3 of Annex I
-----------
hereto.
"Liquidated Damages Agreement" means the Liquidated Damages Agreement,
----------------------------
dated as of October 25, 1999, by and among the Debenture Issuer, the Trust and
the Initial Purchaser named therein, as amended from time to time.
"List of Holders" has the meaning set forth in Section 2.2(a).
---------------
"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, Holders 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, excluding the Trust and the Debenture Issuer and any Affiliate thereof,
who are the record owners of more than 50% of the aggregate liquidation amount
(including the 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 outstanding Securities of the relevant
class.
"Offering Memorandum" has the meaning set forth in Section
-------------------
3.6(b)(i).
"Officers' Certificate" means, with respect to any Person, a
---------------------
certificate signed by an Authorized Officer of such Person. Any Officers'
Certificate delivered by the Trust shall be signed by at least one
Administrative Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Declaration shall
include:
(a) a statement that each officer signing the Certificate has read
the covenants or conditions and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be an
------------------
employee of the Sponsor, and who shall be acceptable to the Property Trustee.
6
<PAGE>
"Participants" has the meaning specified in Section 7.3(b).
------------
"Paying Agent" has the meaning specified in Section 7.4.
------------
"Payment Amount" has the meaning specified in Section 6.1.
--------------
"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)(i).
"Purchase Agreement" means the Purchase Agreement relating to the
------------------
Series A Capital Securities, dated October 25, 1999, by and among the Trust, the
Debenture Issuer and the Initial Purchaser named therein.
"QIBs" shall mean qualified institutional buyers as defined in Rule
----
144A.
"Quorum" means a majority of the Administrative Trustees or, if there
------
are only two Administrative Trustees, both of them.
"Redemption Price" has the meaning set forth in Section 4(a) of
----------------
Annex I hereto.
"Registrar" has the meaning set forth in Section 7.4.
---------
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement, dated as of October 25, 1999, by and among the Trust, the Debenture
Issuer and the Initial Purchaser named therein, as amended from time to time.
"Registration Statement" has the meaning set forth in the
----------------------
Registration Rights Agreement.
"Regulatory Capital Event" has the meaning set forth in Section 4(c)
------------------------
of Annex I hereto.
"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.
"Responsible Officer" means any officer within the Corporate Trust
-------------------
Office of the Property Trustee with direct responsibility for the administration
of this Declaration and also means, with respect to a particular corporate trust
matter, any other officer of the Property Trustee to whom
7
<PAGE>
such matter is referred because of such officer's knowledge of and familiarity
with the particular subject.
"Restricted Capital Security" means a Capital Security required by
---------------------------
Section 9.2 to contain a Restricted Securities Legend.
"Restricted Definitive Capital Securities" has the meaning set forth
----------------------------------------
in Section 7.3(c).
"Restricted Securities Legend" has the meaning set forth in Section
----------------------------
9.2(i).
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act, or any
---------
successor rule or regulation.
"Rule 144" means Rule 144 under the Securities Act, as such rule may
--------
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission.
"Rule 144A" means Rule 144A under the Securities Act, as such rule
---------
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission.
"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.
"Series A Capital Securities" has the meaning specified in Section
---------------------------
7.1(a).
"Series A Capital Securities Guarantee" means the Series A Capital
-------------------------------------
Securities Guarantee Agreement, dated as of the Closing Time, by, Astoria
Financial Corporation in respect of the Series A Capital Securities.
"Series A Debentures" means the 9.75% Junior Subordinated Deferrable
-------------------
Interest Debentures due November 1, 2029, Series A, of the Debenture Issuer
issued pursuant to the Indenture.
"Series B Capital Securities" has the meaning specified in Section
---------------------------
7.1(a).
"Series B Capital Securities Guarantee" means the Series B Capital
-------------------------------------
Securities Guarantee Agreement to be entered into in connection with the
Exchange Offer by Astoria Financial Corporation, in respect of the Series B
Capital Securities.
8
<PAGE>
"Series B Debentures" means the 9.75% Junior Subordinated Deferrable
-------------------
Interest Debentures due November 1, 2029, Series B, of the Debenture Issuer to
be issued pursuant to the Indenture in connection with the Exchange Offer.
"Special Event" has the meaning set forth in Section 4(e) of Annex I
-------------
hereto.
"Special Event Redemption Price" has the meaning set forth in
------------------------------
Section 4(c) of Annex I hereto.
"Sponsor" means Astoria Financial Corporation, a Delaware corporation,
-------
or any successor entity resulting from any merger, consolidation, amalgamation
or other business combina tion, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in Section
--------------------------
5.6(b)(ii).
"Successor Entity" has the meaning set forth in Section 3.15(b)(i).
----------------
"Successor Property Trustee" has the meaning set forth in Section
--------------------------
3.8(f)(ii).
"Successor Securities" has the meaning set forth in Section
--------------------
3.15(b)(i).
"Super Majority" has the meaning set forth in Section 2.6(a) (ii).
--------------
"Tax Event" has the meaning set forth in Section 4(c) of Annex I
---------
hereto.
"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, Holders 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, excluding the Trust and the Debenture Issuer and any Affiliate thereof,
who are the record owners of 10% or more of the aggregate liquidation amount
(including the 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 outstanding Securities of the relevant
class.
"Treasury Regulations" means the income tax regulations, including
--------------------
temporary and proposed regulations, promulgated under the Code by the United
States Treasury Department, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-------------------
amended from time to time, or any successor legislation.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in
--------------
or owing to the Property Trustee Account and (c) all proceeds and rights in
respect of the foregoing and any other property and assets for the time being
held or deemed to be held by the Property Trustee pursuant to this Declaration.
9
<PAGE>
"Trustee" or "Trustees" means each Person who has signed this
------- --------
Declaration as a trustee, so long as such Person shall continue as a trustee of
the Trust 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.
"Unrestricted Global Capital Security" has the meaning set forth
------------------------------------
in Section 9.2(b).
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 in
order for this Declaration to be qualified under the Trust
Indenture Act and shall, to the extent applicable, be governed by
such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by (S)(S)
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.
SECTION 2.2 Lists of Holders of Securities.
------------------------------
(a) Each of the Sponsor and the Administrative Trustees 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
-------- ----
Administrative Trustees on behalf of the Trust shall be obligated
to provide such List of Holders at any time that the List of
Holders does not differ from the most recent List of Holders given
to the Property Trustee by the Sponsor and the Administrative
Trustees 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
10
<PAGE>
(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
(S)(S) 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
-------------------------------
Within 60 days after the date hereof, and no later than the
anniversary date hereof in each succeeding year, the Property Trustee shall
provide to the Holders of the Capital Securities such reports as are required by
(S) 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by (S) 313 of the Trust Indenture Act. The Property Trustee shall also
comply with the requirements of (S) 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
------------------------------------
Each of the Sponsor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee and the Commission such
documents, reports and information as are required by (S) 314 (if any) of the
Trust Indenture Act and shall provide to the Property Trustee the compliance
certificate required by (S) 314 of the Trust Indenture Act in the form, in the
manner and at the times required by (S) 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
------------------------------------------------
Each of the Sponsor and the Administrative Trustees 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 (S) 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to (S) 314(c)(1) of the
Trust Indenture Act may be given in the form of an Officers' 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.
11
<PAGE>
The foregoing provisions of this Section 2.6(a) shall be in lieu of (S)
316(a)(1)(B) of the Trust Indenture Act and such (S) 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 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.
(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;
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 their 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
(S)(S) 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such (S)(S)
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.
12
<PAGE>
(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 (S) 316(a)(1)(B) of the Trust
Indenture Act and such (S) 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 Default; Notice.
---------------
(a) The Property Trustee shall, within 90 days after a Responsible
Officer has actual knowledge of the occurrence of a Default with
respect to the Securities, transmit by mail, first class postage
prepaid, to the Holders, notices of all such Defaults, unless such
Defaults have been cured before the giving of such notice or
previously waived; provided, however, that except in the case of a
-------- -------
Default arising from the nonpayment of principal of (or premium,
if any) or interest (including Compounded Interest and Additional
Sums (as such terms are defined in the Indenture), if any) or
Liquidated Damages, if any (as defined in the Registration Rights
Agreement), on any of the Debentures, the Property Trustee shall
be protected in withholding such notice if and so long as a
Responsible Officer 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 or Event of Default except:
(i) a Default or Event of Default under Sections 5.01(a)
(other than the payment or nonpayment of Compounded Interest,
Additional Sums and Liquidated Damages) and 5.01(b) of the
Indenture; or
(ii) any Default or Event of Default as to which the Property
Trustee shall have received written notice or of which a
Responsible Officer charged with the administration of the
Declaration shall have actual knowledge.
(c) Within ten Business Days after a Responsible Officer has
actual knowledge of the occurrence of any Event of Default, the
Property Trustee shall transmit notice of such Event of Default to
the Holders of the Capital Securities, the Administrative Trustees
and the Sponsor, unless such Event of Default shall have been
cured or waived. The Sponsor and the Administrative Trustees 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.
----
13
<PAGE>
The Trust is named Astoria Capital Trust I as such name may be
modified from time to time by the Administrative Trustees following written
notice to the Delaware Trustee, the Property Trustee and the Holders. The
Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Administrative Trustees.
SECTION 3.2 Office.
------
The address of the principal office of the Trust is c/o Astoria
Financial Corporation, One Astoria Federal Plaza, Lake Success, New York 11042.
On ten Business Days' prior written notice to the Delaware Trustee, the Property
Trustee and the Holders of Securities, the Administrative Trustees may designate
another principal office.
SECTION 3.3 Purpose.
-------
The exclusive purposes and functions of the Trust are (a) to issue
and sell 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,
including without limitation, those activities specified in Sections 3.6, 3.8,
3.9, 3.10, 3.11 and/or 3.12. The Trust shall not borrow money, issue debt or
reinvest proceeds derived from investments, mortgage or pledge any of its
assets, or otherwise 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.
---------
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Administrative Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by one or more of the Administrative Trustees in accordance with
their powers shall constitute the act of and serve to bind the Trust and an
action taken by the Property Trustee on behalf of the Trust in accordance with
its powers shall constitute the act of and serve to bind the Trust. In dealing
with the Trustees acting on behalf of the Trust, no Person shall be required to
inquire into the authority of the Trustees 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.
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 Administrative Trustees.
------------------------------------------------
14
<PAGE>
Subject to Section 5.5, the Administrative Trustees acting
individually or together shall have the exclusive right, power, duty and
authority, and are hereby authorized and directed, to cause the Trust to engage
in the following activities:
(a) to execute, enter into and deliver the Common Securities
Subscription Agreement and to execute, deliver, issue and sell the
Securities in accordance with this Declaration; provided, however,
-------- -------
that except as contemplated in Section 7.1(a), (i) the Trust may
issue no more than one series of Capital Securities 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 both Capital Securities and Common Secu rities at the Closing
Time;
(b) in connection with the issue and sale of the Capital
Securities and the consummation of the Exchange Offer, at the
direction of the Sponsor, to:
(i) prepare and execute, if necessary, an offering memorandum
(the "Offering Memorandum") in preliminary and final form
prepared by the Sponsor, in relation to the offering and sale of
Series A Capital Securities to QIBs in reliance on Rule 144A and
to institutional "accredited investors" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act), and to
execute and file with the Commission, at such time as is
determined by the Sponsor, any Registration Statement, including
any amendments thereto, as contemplated by the Registration
Rights Agreement;
(ii) 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;
(iii) execute and file an application, prepared by the Sponsor,
to permit the Capital Securities to trade or be quoted or listed
in or on any securities exchange, quotation system or the Nasdaq
Stock Market's National Market;
(iv) execute, enter into, deliver and perform the Common
Securities Subscription Agreement, the Purchase Agreement, the
Registration Rights Agreement, the Liquidated Damages Agreement
and letters, documents, or instruments with DTC and other
Clearing Agencies relating to the Capital Securities; and
(v) 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 Section 12(b) or 12(g) of the
Exchange Act, as the case may be.
(c) to execute, enter into and deliver the Debenture Subscription
Agreement, to acquire the Series A Debentures with the proceeds of
the sale of the Series A Capital Securities and the Common
Securities and to exchange the Series A
15
<PAGE>
Debentures for a like principal amount of Series B Debentures,
pursuant to the Exchange Offer; provided, however, that the
-------- -------
Administrative Trustees 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 to be established,
including and with respect to, for the purposes of (S) 316(c) of
the Trust Indenture Act, Distributions, voting rights, redemptions
and exchanges, and to issue relevant notices to the Holders with
respect to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required
of the Administrative Trustees pursuant to the terms of the
Securities;
(g) to the fullest extent permitted by law, 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, agents (who may be
designated as officers with titles), 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 (S) 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be
executed by any Administrative Trustee;
(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
Exchange Agent for the Securities or to appoint a Paying Agent for
the Securities as provided in Section 7.4 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
the 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 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
16
<PAGE>
and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders or to
enable the Trust to effect the purposes for which the Trust was
created;
(o) to take any action, not inconsistent with this Declaration or
with applicable law, that the Administrative Trustees 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 continue 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;
(p) to take all action necessary to consummate the Exchange Offer
or otherwise cause the Capital Securities to be registered
pursuant to an effective registration statement in accordance with
the provisions of the Registration Rights Agree ment;
(q) 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
Administrative Trustees, on behalf of the Trust; and
(r) to execute and deliver all documents, agreements, certificates
and instruments, exercise all rights and powers, perform all
duties and do all things for and on behalf of the Trust in all
matters necessary, advisable or incidental to the foregoing or the
transactions contemplated thereby.
The Administrative Trustees 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 Administrative Trustees 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 Administrative Trustees shall
have none of the powers or the authority of the Property Trustee set forth in
Section 3.8.
Any expenses incurred by the Administrative Trustees pursuant to
this Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
----------------------------------------------------
17
<PAGE>
The Trust shall not, and the Trustees (including the Property
Trustee and the Delaware Trustee) shall not, and the Administrative Trustees
shall cause the Trust not to, engage in any activity other than as required or
authorized by this Declaration. Notwithstanding any provision in this
Declaration to the contrary, the Trust shall not:
(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 or
execute any mortgage in respect of, or pledge, any Trust Property;
(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 Property 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;
(vii) other than as provided in this Declaration or Annex I
hereto, (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, or (C) exercise
any right to rescind or annul any declaration that the principal
of all the Debentures shall be due and payable; or
(viii) 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
independent tax counsel experienced in such matters to the effect
that such amendment, modification or termination will not cause
more than an insubstantial risk that the Trust will not be
classified 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 Trust and 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.
18
<PAGE>
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Administrative Trustees 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 or cause the Paying
Agent to make payments to the Holders 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; and the Property Trustee Account shall be an account
that is maintained with a banking institution the rating on whose
long-term unsecured indebtedness by a "nationally recognized
statistical rating organization," as that term is defined for purposes
of Rule 436(g)(2) under the Securities Act, is at least equal to the
rating assigned to the Capital Securities, unless the Capital
Securities are not rated, in which case the banking institution's
long-term unsecured indebtedness shall be rated at least investment
grade by a "nationally recognized statistical rating organization";
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Securities to
the extent the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Administrative Trustees 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 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 this Declaration and the Securities.
(e) Subject to Section 3.9(a), the Property Trustee shall take any
Legal Action which arises out of or in connection with an Event of Default
of which a Responsible Officer has actual knowledge or the Property
Trustee's duties and obligations under this Declaration or the Trust
Indenture Act; and if the Property Trustee shall have failed to take such
Legal Action following a written request from the Holders, 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
19
<PAGE>
an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay the principal of
or premium, if any, or interest (including Compounded Interest and
Additional Sums, if any) or Liquidated Damages, if any, on the Debentures
on the date such principal, premium, if any, or interest (including
Compounded Interest and Additional Sums, if any) or Liquidated Damages, if
any, is otherwise payable (or in the case of redemption, on the redemption
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 (including Compounded Interest and Additional
Sums, if any) or Liquidated Damages, if any, 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 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 continue to serve as a Trustee until
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 and this Declaration; or
(ii) a successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 5.6 (a "Successor
Property Trustee").
(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 occurs and is continuing, the Property Trustee shall, for the
benefit of Holders, enforce its rights as holder of the Debentures subject
to the rights of the Holders pursuant to the terms of this Declaration and
the Securities.
(h) The Property Trustee shall be authorized to undertake any
actions set forth in (S) 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 (S) 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 Paying Agents may be (but are not required to be)
appointed at any time by the Property Trustee while the Property Trustee is
acting as Paying Agent.
20
<PAGE>
(j) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 3.6.
Notwithstanding anything expressed or implied to the contrary in
this Declaration or any Annex or Exhibit hereto, (i) 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 (ii)
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 Duties and Responsibilities of the Property Trustee.
-----------------------------------------------------------
(a) The Property Trustee, before the occurrence of any Event of
Default (of which, other than in the case of Events of Default
under Sections 5.01(a) and 5.01(b) of the Indenture, which the
Property Trustee is deemed to have knowledge of as provided in
Section 2.7(b) hereof, a Responsible Officer of the Property
Trustee has actual knowledge) and after the curing or waiving of
all such 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 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 (of which,
other than in the case of Events of Default under Sections 5.01(a)
and 5.01(b) of the Indenture, which the Property Trustee is deemed
to have knowledge of as provided in Section 2.7(b) hereof, a
Responsible Officer of the Property Trustee has actual knowledge)
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 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
21
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(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 on their face 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, unless it shall
be proved that the Property Trustee was negligent in ascertaining the
pertinent facts;
(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 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;
(v) the Property Trustee's sole duty with respect to the
custody, safekeeping 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;
(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 Administrative Trustees or the
Sponsor with their respective
22
<PAGE>
duties under this Declaration, nor shall the Property Trustee be
liable for any default or misconduct of the Administrative
Trustees or the Sponsor.
SECTION 3.1 Certain Rights of 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
Administrative Trustees contemplated by this Declaration may be
sufficiently evidenced by an Officers' 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) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers' Certificate
which, upon receipt of such request, shall be promptly delivered
by the Sponsor or the Administrative Trustees;
(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;
(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; and 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 attorneys' fees
and expenses and the expenses of the Property Trustee's agents,
nominees or custodians) and liabilities
23
<PAGE>
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, however, 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 which, other than in the case of Events of Default under
Sections 5.01(a) and 5.01(b) of the Indenture, which the Property
Trustee is deemed to have knowledge of as provided in Section
2.7(b) hereof, a Responsible Officer of the Property Trustee has
actual knowledge), 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 such agent, custodian, nominee 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, 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 Trustee's or its agent's
taking such action;
(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
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(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 or willful misconduct, 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 Trustees described in this Declaration (except as
required under the Business Trust Act). 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 (S) 3807 of the Business Trust Act. In the event
the Delaware Trustee shall at any time be required to take any action or perform
any duty hereunder, the Delaware Trustee shall be entitled to the benefits of
Section 3.9(b)(ii) to (viii), inclusive, and Section 3.10. No implied covenants
or obligations shall be read into this Declaration against the Delaware Trustee.
SECTION 3.12 Execution of Documents.
----------------------
Unless otherwise required by applicable law, each Administrative
Trustee, individually, is authorized to execute and deliver on behalf of the
Trust any documents, agreements, instruments or certificates that the
Administrative Trustees have the power and authority to execute pursuant to
Section 3.6.
SECTION 3.13 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 the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the Trust Property or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14 Duration of Trust.
-----------------
The Trust, unless earlier dissolved pursuant to the provisions of
Article VIII hereof, shall dissolve on November 1, 2034.
25
<PAGE>
SECTION 3.15 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 as an entirety or substantially as an entirety to any
Person, except as described in Section 3.15(b) and (c) and except
with respect to the distribution of Debentures to Holders pursuant
to Section 8.1(a)(iii) of this Declaration or Section 3 of Annex
I.
(b) The Trust may, at the request of the Sponsor, with the consent
of the Administrative Trustees or, if there are more than two, a
majority of the Administrative Trustees 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) 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 in
priority with respect to Distributions and payments
upon liquidation, redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of the
Successor Entity that possesses the same powers and duties as the
Property Trustee with respect to the Debentures;
(iii)the Successor Securities (excluding any securities
substituted for the Common Securities) are listed, quoted or
included for trading, or any Successor Securities will be listed,
quoted or included for trading upon notification of issuance, on
any national securities exchange or with any other organization on
which the Capital Securities are then listed, quoted or included;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Capital
Securities (including any Successor Securities) or the Debentures
to be downgraded by any nationally recognized statistical rating
organization that publishes a rating on the Capital Securities or
the Debentures;
(v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the Holders (including the
holders of any Successor Securities) in any material respect
(other than with respect to any dilution of the interests of such
Holders or holders, as the case may be, in the Successor Entity);
26
<PAGE>
(vi) the Successor Entity has a purpose substantially
identical to that of the Trust;
(vii)prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Sponsor has
received an opinion of 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 the holders of any Successor
Securities) in any material respect (other than with
respect to any dilution of the interests of such
Holders or holders, as the case may be, in the
Successor Entity);
(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
(C) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Trust
(or the Successor Entity) will continue to be
classified as a grantor trust for United States
federal income tax purposes;
(viii)the Sponsor or any permitted successor or assignee of
the Sponsor owns all of the common securities of the Successor
Entity and guarantees the obligations of the Successor Entity
under the Successor Securities at least to the extent provided by
the Securities Guarantees; and
(ix) there shall have been furnished to the Property
Trustee an Officers' Certificate and an Opinion of Counsel, each
to the effect that all conditions precedent in this Declaration to
such transaction have been satisfied.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in aggregate 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 Person or permit any other Person to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance,
transfer or lease would cause the Trust or the Successor Entity
not to be classified as a grantor trust for United States federal
income tax purposes.
27
<PAGE>
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
---------------------------------------
At the Closing Time, pursuant to the Common Securities Subscription
Agreement, the Sponsor will purchase all of the Common Securities then issued by
the Trust, in an amount equal to at least 3% of the total capital of the Trust,
at the same time as the Series A 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 the Offering Memorandum, in preliminary and final
form, and to prepare for filing by the Trust with the Commission
any Registration Statement, including any amendments thereto, as
contemplated by the Registration Rights Agreement;
(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 permit the Capital Securities
to trade or be quoted or listed on any other securities exchange,
quotation system or the Nasdaq Stock Market's National Market;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A, including any amendments
thereto, relating to the registration of the Capital Securities
under Section 12(b) or 12(g) of the Exchange Act, as the case may
be, including any amendments thereto; and
(e) to negotiate the terms of, execute, enter into and deliver the
Purchase Agreement, the Registration Rights Agreement and the
Liquidated Damages Agreement.
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 Debenture Issuer to pay
the principal of or premium (if any) or interest on the
28
<PAGE>
Debentures, to institute a proceeding directly against the Debenture Issuer for
enforcement of its payment obligations in respect of the Debentures.
SECTION 4.4 Right to Dissolve Trust.
-----------------------
The Sponsor 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, to cause the Debentures to be distributed to the Holders in
liquidation of the Trust. Such right is subject to the Sponsor's having received
(i) an Opinion of Counsel to the effect that such distribution will not cause
the Holders of Capital Securities to recognize gain or loss for United States
federal income tax purposes and (ii) all required regulatory approvals.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee.
---------------------------------------------
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of
Trustees; and
(b) after the issuance of any Securities, the number of Trustees
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); 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 (the "Delaware Trustee"); (2) there shall be at least one
Trustee who is an employee or officer of, or is affiliated with, the Sponsor (an
"Administrative Trustee"); 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, at any time or times, for the
purpose of meeting the legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the time be located,
the 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
Administrative Trustees shall have power to appoint one or more Persons either
to act as a co-trustee, jointly with the Property Trustee, of all or any part of
the Trust 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.
29
<PAGE>
SECTION 5.2 Delaware Trustee.
----------------
For so long as required by the Business Trust Act, 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, however, 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.
The initial Delaware Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Telephone: (302) 651-1000
Telecopier: (302) 651-8882
SECTION 5.3 Property Trustee; Eligibility.
-----------------------------
(a) There shall at all times be one Trustee (the "Property Trustee")
which shall act as Property Trustee and 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 corporation or Person
permitted by the Commission to act as an indenture trustee under the
Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least fifty million U.S. dollars ($50,000,000), and subject to
supervision or examination by federal, state, territorial or
District of Columbia authority. If such 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 5.3(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 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).
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(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of (S) 330(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 (S) 310(b) of the Trust
Indenture Act) shall in all respects comply with the provisions of
(S) 310(b) of the Trust Indenture Act.
(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 (S) 310 (b) of the Trust
Indenture Act.
(e) The initial Property Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Telephone: (302) 651-1000
Telecopier: (302) 651-8882
SECTION 5.4 Certain Qualifications of Administrative Trustees and Delaware
--------------------------------------------------------------
Trustee Generally.
-----------------
Each Administrative Trustee 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 Administrative Trustees.
-----------------------
The initial Administrative Trustees shall be:
Monte N. Redman
Frank E. Fusco
Thomas E. Lavery
One Astoria Federal Plaza
Lake Success, New York 11042
Telephone: (516) 372-7892
Telecopier: (516) 327-7860
(a) Except as otherwise expressly set forth in this Declaration and
except if a meeting of the Administrative Trustees is called with
respect to any matter over which the Administrative Trustees have
power to act, any power of the Administrative Trustees may be
exercised by, or with the consent of, any one such Administrative
Trustee.
(b) Unless otherwise required by the Business Trust Act or other
applicable law, any Administrative Trustee acting alone is
authorized to execute on behalf of the Trust any documents which
the Administrative Trustees have the power and authority to cause
the Trust to execute pursuant to Section 3.6.
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<PAGE>
(c) An Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over
the age of 21 his or her power for the purposes of signing any
documents which the Administrative Trustees have power and
authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 5.6 Appointment, Removal and Resignation of Trustees.
------------------------------------------------
(a) Subject to Section 5.6(b) hereof and to Section 6(b) of Annex I
hereto, Trustees 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, 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; 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, and
with respect to the Administrative Trustees, in the manner set
forth in Section 5.6(a)(ii) hereof.
(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 removed Property Trustee, the
Administrative Trustees 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 removed Delaware Trustee, the Property Trustee (if
the removed Delaware Trustee is not also the Property Trustee), the
Administrative Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or
resignation. Any Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing signed
by the Trustee and delivered to the other Trustees, 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:
32
<PAGE>
(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, the Delaware Trustee (if the resigning Property
Trustee is not also the Delaware Trustee) 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; and
(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 Property Trustee
(if the resigning Delaware Trustee is not also the Property Trustee), the
Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities or, if an Event of Default
shall have occurred and be continuing after the issuance of the Securities,
the Holders of the Capital Securities shall use their best efforts to
promptly appoint a Successor Property Trustee or Successor Delaware
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 to prescribe, 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.
(g) At the time of resignation or removal of the Property Trustee or
the Delaware Trustee, the Sponsor shall pay to such Trustee any amounts
that may be owed to such Trustee pursuant to Section 10.4.
(h) Any successor Delaware Trustee shall file an amendment to the
Certificate of Trust with the Secretary of State of the State of Delaware
identifying the name and principal place of business of such Successor
Delaware Trustee in the State of Delaware.
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SECTION 5.7 Vacancies among Trustees.
------------------------
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.l, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Administrative Trustees or, if
there are more than two, a majority of the Administrative Trustees 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 shall not operate to dissolve, liquidate or annul the Trust or to
terminate this Declaration. Whenever a vacancy in the number of Administrative
Trustees shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 5.6, the Administrative
Trustees in office, regardless of their number, shall have all the powers
granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Declaration.
SECTION 5.9 Meetings.
--------
If there is more than one Administrative Trustee, meetings of the
Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative Trustees 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 Administrative Trustees 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 Administrative Trustee at a meeting shall constitute a waiver
of notice of such meeting except where an Administrative Trustee 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 Administrative
Trustees may be taken at a meeting by vote of a majority of the Administrative
Trustees 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 Administrative Trustees. In the event
there is only one Administrative Trustee, any and all action of such
Administrative Trustee shall be evidenced by a written consent of such
Administrative Trustee.
SECTION 5.10 Delegation of Power.
-------------------
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his
or her
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power for the purpose of executing any documents contemplated
in Section 3.6, including any registration statement or amendment thereto
filed with the Commission, or making any other governmental filing.
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number 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 Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation
is not prohibited by applicable law or contrary to the provisions of this
Declaration.
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any Person into which the Property Trustee or the Delaware Trustee
or any Administrative Trustee 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 or the Delaware Trustee, 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 or the Delaware Trustee, as the case may be, shall be the
successor of the Property Trustee or the Delaware Trustee, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, provided such Person shall be otherwise
qualified and eligible under this Article and provided further that such Person
shall file an amendment to the Certificate of Trust with the Delaware Secretary
of State as contemplated in Section 5.6(h).
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
-------------
Holders shall receive Distributions in accordance with the
applicable terms of the relevant Holder's Securities. If and to the extent that
the Debenture Issuer makes a payment of interest (including Compounded Interest
and Additional Sums), premium and/or principal on the Debentures held by the
Property Trustee or Liquidated Damages or any other payments pursuant to the
Registration Rights Agreement or Liquidated Damages Agreement with respect to
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 terms of
the Securities.
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ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
---------------------------------------
(a) The Administrative Trustees shall, on behalf of the Trust, issue
one class of capital securities representing undivided preferred beneficial
interests in the assets of the Trust having such terms as are set forth in
Annex I (the "Series A Capital Securities") and one class of common
securities representing undivided common beneficial interests in the assets
of the Trust having such terms as are set forth in Annex I (the "Common
Securities"). The Administrative Trustees shall, on behalf of the Trust,
issue one class of capital securities representing undivided preferred
beneficial interests in the assets of the Trust having such terms as set
forth in Annex I (the "Series B Capital Securities") in exchange for the
Series A Capital Securities accepted for exchange in the Exchange Offer,
which Series B Capital Securities shall not bear the legends required by
Section 9.2(i) unless the Holder of such Series A Capital Securities is
either (A) a broker-dealer who purchased such Series A Capital Securities
directly from the Trust for resale pursuant to Rule 144A or any other
available exemption under the Securities Act, (B) a Person participating in
the distribution of the Series A Capital Securities or (C) a Person who is
an Affiliate of the Sponsor or the Trust. The Trust shall issue no
securities or other interests in the assets of the Trust other than the
Capital Securities and the Common 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 and, subject to
the terms of this Declaration, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust and entitled to the
benefits of this Declaration, and the Holders thereof shall be entitled to
the benefits of this Declaration.
(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
Administrative Trustee. In case any Administrative Trustee of the Trust who
shall have signed any of the Securities shall cease to be such
Administrative Trustee 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
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to be such Administrative Trustee; 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 Administrative Trustees of the Trust, although
at the date of the execution and delivery of this Declaration any such
person was not an Administrative Trustee.
(b) One Administrative Trustee shall sign the Capital Securities for the
Trust by manual or facsimile signature. Unless otherwise determined by an
Administrative Trustee on behalf of the Trust, an Administrative Trustee
shall sign the Common Securities for the Trust by manual signature.
A Capital Security shall not be valid until authenticated by the manual
signature of an authorized signatory of the Property Trustee. The signature
shall be conclusive evidence that the Capital Security has been authenticated
under this Declaration. A Common Security shall be valid upon execution by an
Administrative Trustee without any act of the Property Trustee.
Upon a written order of the Trust signed by one Administrative Trustee, 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 Annex I hereto except as provided in Section 7.6.
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 hereunder with respect to the Sponsor or an Affiliate.
SECTION 7.3 Form and Dating.
---------------
The Capital Securities shall be evidenced by one or more
certificates substantially in the form of Exhibit A-1, and the Common Securities
shall be evidenced by one or more certificates substantially in the form of
Exhibit A-2. The Property Trustee's certificate of authentication shall be
substantially in the form set forth in Exhibit A-1. Certificates representing
the Securities may be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to an Administrative Trustee, as
evidenced by the 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 Administrative Trustees, as
evidenced by their execution thereof. 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 A-2 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.
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(a) Global Capital Security. Capital Securities offered and sold to
-----------------------
QIBs in reliance on Rule 144A, as provided in the Purchase Agreement, shall
be issued in the form of a single permanent global Capital Security in
definitive, fully registered form without distribution coupons with the
appropriate global legends and Restricted Securities Legend set forth in
Exhibit A-1 hereto (the "Global Capital Security"), which shall be
deposited on behalf of the purchasers of the Capital Securities represented
thereby with the Property Trustee, at its Corporate Trust 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 the 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.
(b) Book-Entry Provisions. This Section 7.3(b) shall apply only to
---------------------
the Global Capital Security 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.
An Administrative Trustee shall execute and the Property Trustee shall, in
accordance with this Section 7.3, authenticate and make available for delivery
initially a single Global Capital Security 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, if no such written instructions are
received by the Property Trustee, 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 the 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 the Global Capital Security.
(c) Definitive Capital Securities. Except as provided in Section 7.9
-----------------------------
or 9.2(f)(i), owners of beneficial interests in the Global Capital Security
will not be entitled to receive physical delivery of certificated Capital
Securities ("Definitive Capital Securities"). Purchasers of Securities who
are "accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act) and who are not QIBs will receive Capital
Securities in the form of individual certificates in definitive, fully
registered form without distribution coupons and with the Restricted
Securities Legend set forth in Exhibit A-1 hereto ("Restricted Definitive
Capital
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Securities"); provided, however, that upon registration of transfer of
-------- -------
such Restricted Definitive Capital Securities to a QIB, such Restricted
Definitive Capital Securities will, unless the Global Capital Security has
previously been exchanged, be exchanged for an interest in the Global
Capital Security pursuant to the provisions of Section 9.2. Restricted
Definitive Capital Securities will bear the Restricted Securities Legend
set forth on Exhibit A-1 unless removed in accordance with this Section 7.3
or Section 9.2.
SECTION 7.4 Registrar, Paying Agent and Exchange Agent.
------------------------------------------
The Trust shall maintain in Wilmington, Delaware (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 exchange ("Exchange Agent"). The Registrar shall
keep a register of the Capital Securities and of their transfer. The Trust may
appoint the Registrar, the Paying Agent and the Exchange Agent and may appoint
one or more co-registrars, one or more additional paying agents and one or more
additional Exchange Agents in such other locations as it shall determine. The
term "Registrar" includes any additional registrar, the term "Paying Agent"
includes any additional paying agent and the term "Exchange Agent" includes any
additional Exchange Agent. The Trust may change any Paying Agent, Registrar, co-
registrar or Exchange 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
Property Trustee, the Administrative Trustees and the Sponsor. 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 Exchange Agent, the Property Trustee shall act as
such. The Trust or any of its Affiliates may act as Paying Agent, Registrar, or
Exchange Agent. The Trust shall act as Paying Agent, Registrar and Exchange
Agent for the Common Securities.
The Trust initially appoints the Property Trustee as Registrar, Paying
Agent and Exchange Agent for the Capital Securities.
SECTION 7.5 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, 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 7.6 Replacement Securities.
----------------------
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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, an Administrative Trustee shall execute and the Property
Trustee shall authenticate and make available for delivery a replacement
Security if the Property Trustee's requirements are met. An indemnity bond must
be provided by the Holder which, in the judgment of the Property Trustee, is
sufficient to protect the Trustees, the Sponsor, the Trust 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.
SECTION 7.7 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, paid or purchased pursuant to
Section 7.6 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 7.8 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 7.9 Temporary Securities.
--------------------
(a) 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 Capital
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 Capital Securities in exchange for temporary
Securities.
(b) The Global Capital Security deposited with the Clearing Agency
or with the Property Trustee as custodian for the Clearing Agency pursuant
to Section 7.3
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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, in each case, a clearing agency is
not appointed by the Sponsor within 90 days of receipt of such notice or of
becoming aware of such condition, (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.
(c) Any Global Capital Security that is transferable to the
beneficial owners thereof in the form of Definitive Capital Securities
pursuant to this Section 7.9 shall be surrendered by the Clearing Agency to
the Property Trustee 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 Capital
Securities of authorized denominations in the form of Definitive Capital
Securities. Any portion of the Global Capital Security transferred pursuant
to this Section shall be registered in such names as the Clearing Agency
shall direct. Any Definitive Capital Security delivered in exchange for an
interest in the Restricted Global Capital Security shall, except as
otherwise provided by Sections 7.3 and 9.1, bear the Restricted Securities
Legend set forth in Exhibit A-l hereto.
(d) Subject to the provisions of Section 7.9(c), the Holder of the
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.
(e) In the event of the occurrence of any of the events specified
in Section 7.9(b), the Trust will promptly make available to the Property
Trustee a reasonable supply of certificated Capital Securities in fully
registered form without distribution coupons.
SECTION 7.10 Cancellation.
------------
The Trust at any time may deliver Capital Securities to the
Property Trustee for cancellation. The Registrar, Paying Agent and Exchange
Agent shall forward to the Property Trustee any Capital Securities surrendered
to them for registration of transfer, redemption, exchange or payment. The
Property Trustee shall promptly cancel all Capital Securities surrendered for
registration of transfer, redemption, exchange, payment, replacement or
cancellation and shall dispose of canceled Capital Securities in accordance with
its customary procedures unless the Trust otherwise directs. 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 exchanged.
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SECTION 7.11 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 redemp tion 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 OF TRUST
SECTION 8.1 Dissolution of Trust.
--------------------
(a) The Trust shall automatically 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) following the distribution of a Like Amount of the Debentures
to the Holders, provided that, the Property Trustee has received
-------------
written notice from the Sponsor directing the Property Trustee to
dissolve the Trust (which direction is optional, and except as
otherwise expressly provided below, within the discretion of the
Sponsor), and provided, further, that such direction and such
-------- -------
distribution is conditioned on (a) the receipt by the Sponsor of any
and all required regulatory approvals, and (b) the Sponsor's receipt
and delivery to the Administrative Trustees of an opinion of
independent tax counsel experienced in such matters, which opinion may
rely on public or private rulings of the Internal Revenue Service, to
the effect that the Holders of the Capital Securities 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
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;
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(vi) upon the redemption or 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
3.14.
(b) As soon as is practicable upon completion of winding up of the
Trust following the occurrence of an event referred to in Section 8.1(a)
and the satisfaction of creditors of the Trust in accordance with
applicable law, the Administrative Trustees shall terminate the Trust by
filing a certificate of cancellation with the Secretary of State of the
State of Delaware in accordance with the Business Trust Act.
(c) The provisions of Section 3.9 and Article X shall survive the
dissolution and 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, in
accordance with the terms and conditions set forth in this Declaration and
in accordance with 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) Subject to this Article IX, Capital Securities may only be
transferred, in whole or in part, in accordance with the terms and
conditions set forth in this Declaration. 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.
(c) For so long as the Securities remain outstanding, the Sponsor
agrees (i) not to transfer ownership of the Common Securities of the Trust,
provided that any permitted successor of the Sponsor under the Indenture
may succeed to the Sponsor's ownership of the Common Securities, (ii) not
to cause, as Sponsor of the Trust, or to permit, as Holder of the Common
Securities, the dissolution, winding-up or liquidation of the Trust, except
as provided in this Declaration and (iii) to use its best efforts to cause
the Trust (a) to remain a business trust, except in connection with the
distribution of Debentures to the Holders in liquidation of the Trust, the
redemption of all of the Securities, or certain mergers, consolidations or
amalgamations, each as permitted by this Declaration, and (b) to otherwise
continue to be classified as a grantor trust for United States federal
income tax purposes.
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(d) The Registrar shall provide for the registration of Capital
Securities and of the transfer of Capital Securities, which will be
effected without charge but only upon payment (with such indemnity as the
Registrar 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 Capital Securities, an Administrative Trustee shall cause
one or more new Capital Securities to be issued in the name of the
designated transferee or transferees. Every Capital Security surrendered
for registration of transfer shall be accompanied by a written instrument
of transfer in form satisfactory to the Registrar duly executed by the
Holder or such Holder's attorney duly authorized in writing. Each Capital
Security surrendered for registration of transfer shall be delivered to the
Registrar and canceled in accordance with Section 7.10. A transferee of a
Capital Security shall be entitled to the rights and subject to the
obligations of a Holder hereunder upon the receipt by such transferee of a
Capital Security. By acceptance of a Capital Security or any interest
therein, each transferee shall be deemed to have agreed to be bound by this
Declaration.
SECTION 9.2 Transfer Procedures and Restrictions.
------------------------------------
(a) General. Except as otherwise provided in Section 9.2(b), if
-------
Capital Securities are issued upon the transfer, exchange or replacement of
Capital Securities bearing the Restricted Securities Legend set forth in
Exhibit A-1 hereto, or if a request is made to remove such Restricted
Securities Legend on Capital Securities, the Capital Securities so issued
shall bear the Restricted Securities Legend, or the Restricted Securities
Legend shall not be removed, as the case may be, unless there is delivered
to the Trust and the Property Trustee such satisfactory evidence, which
shall include an Opinion of Counsel, as may be reasonably required by the
Trust and the Property Trustee, that neither the Restricted Securities
Legend nor the restrictions on transfer set forth therein are required to
ensure that transfers thereof are made pursuant to an exception from the
registration requirements of the Securities Act or, with respect to
Restricted Capital Securities, that such Securities are not "restricted"
within the meaning of Rule 144. Upon provision of such satisfactory
evidence, the Property Trustee, at the written direction of an
Administrative Trustee on behalf of the Trust, shall authenticate and
deliver Capital Securities that do not bear the legend.
(b) Transfers After Effectiveness of a Registration Statement. After
---------------------------------------------------------
the effectiveness of a Registration Statement with respect to any Capital
Securities, all requirements pertaining to legends on such Capital
Securities will cease to apply (other than the legend requiring that
transfers of Capital Securities be made in blocks having an aggregate
liquidation amount of not less than $100,000 (100 Capital Securities) and
multiples of $1,000 in excess thereof), and beneficial interests in the
Global Capital Security without legends will be available to transferees of
such Capital Securities, upon exchange of the transferring Holder's
Restricted Definitive Capital Security or directions to transfer such
Holder's beneficial interest in the Global Capital Security, as the case
may be. No such
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transfer or exchange of a Restricted Definitive Capital Security or of an
interest in the Global Capital Security shall be effective unless the
transferor delivers to the Property Trustee a certificate in a form
substantially similar to that attached hereto as the form of "Assignment"
in Exhibit A-1. Except as otherwise provided in Section 9.2(m), after the
effectiveness of a Registration Statement, an Administrative Trustee on
behalf of the Trust shall issue and the Property Trustee, upon a written
order of the Trust signed by one Administrative Trustee, shall authenticate
a Global Capital Security without the Restricted Securities Legend (the
"Unrestricted Global Capital Security") to deposit with the Clearing Agency
to evidence transfers of beneficial interests from the Global Capital
Security and Restricted Definitive Capital Securities.
(c) 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 which became mutilated,
destroyed, defaced, stolen or lost, 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
- -------- -------
registration of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instrument
of transfer in form reasonably satisfactory to the Trust and the
Registrar or co-registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing; and
(ii) in the case of Definitive Capital Securities that are
Restricted Definitive Capital Securities:
(A) if such Restricted Capital Securities are being delivered to
the Registrar by a Holder for registration in the name of
such Holder, without transfer, certification(s) from such
Holder to that effect; or
(B) if such Restricted Capital Securities are being transferred:
(i) certification(s) in a form substantially similar to that
attached hereto as the form of "Assignment" in Exhibit A-1,
and (ii) if the Trust or Registrar so requests, evidence
reasonably satisfactory to them as to the compliance with
the restrictions set forth in the Restricted Securities
Legend.
(d) Restrictions on Transfer of a Definitive Capital Security for a
---------------------------------------------------------------
Beneficial Interest in the Global Capital Security. A Definitive Capital
--------------------------------------------------
Security may not be
45
<PAGE>
exchanged for a beneficial interest in the 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 Property Trustee, together with:
(i) if such Definitive Capital Security is a Restricted Capital
Security, certification(s) in a form substantially similar to that
attached hereto as the form of "Assignment" in Exhibit A-1; and
(ii) whether or not such Definitive Capital Security is a
Restricted Capital Security, 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 Global Capital
Security to reflect an increase in the 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 Global Capital Security to be increased
accordingly. If the Global Capital Security is not then outstanding, an
Administrative Trustee on behalf of the Trust shall issue and the Property
Trustee shall authenticate, upon written order of any Administrative Trustee, a
new Global Capital Security representing an appropriate number of Capital
Securities.
(e) Transfer and Exchange of the Global Capital Security. Subject to
----------------------------------------------------
Section 9.2(f), the transfer and exchange of the Global Capital Security
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.
(f) Transfer of a Beneficial Interest in the Global Capital Security
----------------------------------------------------------------
for a Definitive Capital Security.
---------------------------------
(i) Any Person having a beneficial interest in the 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 the
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 Restricted Capital Security and certification(s) 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 the Global Capital Security to be
reduced on its books and records and, following such reduction, the
Trust will execute and the
46
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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 the Global Capital Security pursuant to this
Section 9.2(f) shall be registered in such names and in such
authorized denominations as the Clearing Agency, pursuant to
instructions from its Clearing Agency 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.
(g) Restrictions on Transfer and Exchange of the Global Capital
-----------------------------------------------------------
Security. Notwithstanding any other provisions of this Declaration (other
--------
than the provisions set forth in subsection (h) of this Section 9.2), the
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.
(h) Authentication of Definitive Capital Securities. If at any time:
-----------------------------------------------
(i) a Default or an Event of Default has occurred and is continuing,
(ii) 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, or
(iii) 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, in each
case, a clearing agency is not appointed by the Sponsor within 90 days
of receipt of such notice or of becoming aware of such condition,
then an Administrative Trustee on behalf of the Trust will execute, and the
Property Trustee, upon receipt of a written order of the Trust signed by one
Administrative Trustee 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 Security, in
exchange for such Global Capital Security.
(i) Legend.
------
(i) Except as permitted by the following paragraph (ii), each
Capital Security Certificate evidencing the Global Capital Security
and each Definitive Capital Security (and all Capital Securities
issued in exchange therefor or
47
<PAGE>
substitution thereof) shall bear a legend (the "Restricted
Securities Legend") in substantially the following form:
THIS CAPITAL SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER
THIS CAPITAL 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.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF AGREES
TO OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL SECURITY, PRIOR
TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS
TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE DATE HEREOF AND
THE LAST DATE ON WHICH ASTORIA FINANCIAL CORPORATION (THE
"CORPORATION") OR ANY "AFFILIATE" OF THE CORPORATION WAS THE OWNER
OF THIS CAPITAL SECURITY (OR ANY PREDECESSOR OF THIS CAPITAL
SECURITY) ONLY (A) TO THE CORPORATION, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) SO LONG AS THIS CAPITAL SECURITY IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS
CAPITAL SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR
48
<PAGE>
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT,
SUBJECT TO THE RIGHT OF ASTORIA CAPITAL TRUST I (THE "TRUST") AND
THE CORPORATION PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND (ii) PURSUANT TO CLAUSE (D) TO REQUIRE THAT THE
TRANSFEROR DELIVER TO THE TRUST A LETTER FROM THE TRANSFEREE
SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING MEMORANDUM
DATED OCTOBER 25, 1999. SUCH HOLDER FURTHER AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS CAPITAL SECURITY IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF ALSO
AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT,
INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT
TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, (THE "CODE") (EACH A "PLAN"), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY
PLAN'S INVESTMENT IN THE ENTITY AND NO PERSON INVESTING "PLAN
ASSETS" OF ANY PLAN MAY ACQUIRE OR HOLD THE CAPITAL SECURITIES OR
ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE
FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR
84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING
OF CAPITAL SECURITIES IS NOT PROHIBITED BY SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING.
ANY PURCHASER OR HOLDER OF THE
49
<PAGE>
CAPITAL SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE
REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT
IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3)
OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING
THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH
PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
In all circumstances, each Capital Security Certificate shall bear the following
legend:
THE CAPITAL SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000
(100 CAPITAL SECURITIES) AND MULTIPLES OF $1,000 IN EXCESS THEREOF.
ANY ATTEMPTED TRANSFER OF CAPITAL SECURITIES IN A BLOCK HAVING A
LIQUIDATION AMOUNT OF LESS THAN $100,000 (100 CAPITAL SECURITIES)
SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY
SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF
SUCH CAPITAL SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED
TO, THE RECEIPT OF DISTRIBUTIONS ON SUCH CAPITAL SECURITIES, AND
SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN SUCH CAPITAL SECURITIES.
(ii) Upon any sale or transfer of a Restricted Capital Security
(including any Restricted Capital Security represented by the Global
Capital Security) pursuant to an effective registration statement
under the Securities Act or pursuant to Rule 144:
(A) in the case of any Restricted Capital Security that is a
Definitive Capital Security, the Registrar shall permit the
Holder thereof to exchange such Restricted Capital Security
for a Definitive Capital Security that does not bear the
Restricted Securities Legend and rescind any restriction on
the transfer of such Restricted Capital Security; and
50
<PAGE>
(B) in the case of any Restricted Capital Security that is
represented by the Global Capital Security, the Registrar
shall permit the Holder of such Global Capital Security to
exchange such Global Capital Security for another Global
Capital Security that does not bear the Restricted
Securities Legend.
(j) Cancellation or Adjustment of Global Capital Security. At such
-----------------------------------------------------
time as all beneficial interests in the Global Capital Security have either
been exchanged for Definitive Capital Securities to the extent permitted by
this Declaration or redeemed, 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 the 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 and the Clearing Agency or
its nominee to reflect such reduction.
(k) 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 the Global Capital Security 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 registration 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 absolute owner
of such Capital Security for the purpose of receiving Distributions on
such Capital Security 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.
51
<PAGE>
(v) All Capital Securities issued upon any registration of 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
registration of transfer or exchange.
(l) No Obligation of the Property Trustee.
-------------------------------------
(i) The Property Trustee shall have no responsibility or obligation
to any Capital Security Beneficial Owner, 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 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 the Global Capital
Security). The rights of Capital Security Beneficial Owners 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 Capital Security Beneficial
Owners.
(ii) The Property Trustee and the 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 Capital Security Beneficial Owners)
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.
(m) Exchange of Series A Capital Securities for Series B Capital
------------------------------------------------------------
Securities. The Series A Capital Securities shall be exchanged for Series B
----------
Capital Securities pursuant to the terms of the Exchange Offer if the
following conditions are satisfied:
The Sponsor shall present the Property Trustee with an Officers'
Certificate certifying the following:
52
<PAGE>
(A) upon issuance of the Series B Capital Securities, the
transactions contemplated by the Exchange Offer have been
consummated; and
(B) the number of Series A Capital Securities properly tendered
in the Exchange Offer that are represented by the Global
Capital Security and the number of Series A Capital
Securities properly tendered in the Exchange Offer that are
represented by Definitive Capital Securities, the name of
each Holder of such Definitive Capital Securi ties, the
liquidation amount of Capital Securities properly tendered
in the Exchange Offer by each such Holder and the name and
address to which Definitive Capital Securities for Series B
Capital Securities shall be registered and sent for each
such Holder.
The Property Trustee, upon receipt of (i) such Officers' Certificate,
(ii) an Opinion of Counsel (x) to the effect that the Series B Capital
Securities and the Series B Capital Securities Guarantee have been registered
under Section 5 of the Securities Act and that this Declaration and the Series B
Capital Securities Guarantee have been qualified under the Trust Indenture Act
and (y) with respect to the matters set forth in Section 3(q) of the
Registration Rights Agreement, shall authenticate (A) the Global Capital
Security, executed and delivered by the Trust to the Property Trustee, for
Series B Capital Securities in aggregate liquidation amount equal to the
aggregate liquidation amount of Series A Capital Securities represented by the
Global Capital Security indicated in such Officers' Certificate as having been
properly tendered and (B) Definitive Capital Securities, executed and delivered
by the Trust to the Property Trustee, representing Series B Capital Securities
registered in the names and in the liquidation amounts indicated in such
Officers' Certificate.
If, upon consummation of the Exchange Offer, less than all the
outstanding Series A Capital Securities shall have been properly tendered and
not withdrawn, the Property Trustee shall make an endorsement on the Global
Capital Security for Series A Capital Securities indicating the reduction in the
number and aggregate liquidation amount represented thereby as a result of the
Exchange Offer.
The Trust shall deliver such authenticated Definitive Capital
Securities for Series B Capital Securities to the Holders thereof as indicated
in such Officers' Certificate.
(n) Minimum Transfers. Series A Capital Securities and, if and when
-----------------
issued, Series B Capital Securities may only be transferred in minimum
blocks of $100,000 aggregate liquidation amount (100 Capital Securities)
and multiples of $1,000 in excess thereof. Any attempted transfer of Series
A Capital Securities or Series B Capital Securities in a block having an
aggregate liquidation amount of less than $100,000 shall be deemed to be
voided and of no legal effect whatsoever. Any such purported transferee
shall be deemed not to be a Holder of such Series A Capital Securities or
Series B Capital Securities for any purpose, including, but not limited to,
the receipt of Distributions on such Capital Securities, and such purported
transferee shall be deemed to have no interest whatsoever in such Capital
Securities.
53
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SECTION 9.3 Deemed Security Holders.
-----------------------
The Trustees may treat the Person in whose name any Security shall be
registered on the books and records of the Trust as the sole owner and Holder of
such Security for purposes of receiving Distributions and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Security on the part of any Person, whether
or not the Trust shall have actual or other notice thereof.
SECTION 9.4 Book-Entry Interests.
--------------------
The Global Capital Security 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 physical delivery
of a definitive Capital Security certificate (a "Capital Security Certificate")
representing such Capital Security Beneficial Owner's interests in such Global
Capital Security, except as provided in Section 9.2 and Section 7.9. Unless and
until Definitive Capital Securities have been issued to the Capital Security
Beneficial Owners pursuant to Section 9.2 or Section 7.9:
(a) the provisions of this Section 9.4 shall be in full force and effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the payment
of Distributions on the Global Capital Security and receiving approvals,
votes or consents hereunder) as the sole Holder of the Global Capital
Security and shall have no obligation to the Capital Security Beneficial
Owners;
(c) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(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 shall receive and transmit payments of Distributions on
the Global Capital Security to such Clearing Agency Participants; provided,
--------
however, that solely for the purposes of determining whether the Holders of
-------
the requisite amount of Capital Securities have voted on any matter
provided for in this Declaration, the Trustees, with respect to the Global
Capital Security, may conclusively rely on, and shall be protected in
relying on, any written instrument (including a proxy) delivered to the
Trustees by the Clearing Agency setting forth the Capital Security
Beneficial Owners' votes or assigning the right to vote on any matter to
any other Persons either in whole or in part; and the Clearing Agency will
also make book-entry transfers among the Clearing Agency Participants.
54
<PAGE>
SECTION 9.5 Notices to Clearing Agency.
--------------------------
Whenever a notice or other communication to the Capital Security
Holders is required to be given by a Trustee under this Declaration, such
Trustee shall give all such notices and communications specified herein to be
given to the Holder of the Global Capital Security to the Clearing Agency and
shall have no notice obligations to the Capital Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
----------------------------------------
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Capital Securities, the Administrative
Trustees 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 which shall be
made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder any deficit upon
dissolution of the Trust or otherwise.
(b) The Sponsor shall be liable for all of the debts and obligations
of the Trust (other than in respect of the Securities) to the extent not
satisfied out of the Trust's assets.
(c) Pursuant to (S) 3803(a) of the Business Trust Act, the Holders
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) 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 in the case of the
55
<PAGE>
Property Trustee or the Delaware Trustee, 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 who has been selected with reasonable
care by or on behalf of the Trust, including information, opinions, reports
or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount
of assets from which Distributions to Holders might properly be paid.
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 Indem nified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
56
<PAGE>
(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
(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
attorneys' 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 attorneys'
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 settlement of an action without admission of liability)
in defense of any action, suit or proceeding referred to in
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paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any claim,
issue or matter therein, he or she shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually and
reasonably incurred by him or her 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 or she has
met the applicable standard of conduct set forth in paragraphs (i) and (ii).
Such determination shall be made (1) by the Administrative Trustees by a
majority vote of a Quorum consisting of such Administrative Trustees 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 Administrative
Trustees so directs, by independent legal counsel in a written opinion, or (3)
by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' 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 or she 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 Administrative Trustees by a majority vote of a Quorum
of disinterested Administrative Trustees, (ii) if such a Quorum is not
obtainable, or, even if obtainable, if a Quorum of disinterested Administrative
Trustees so directs, by independent legal counsel in a written opinion or (iii)
by the Common Security Holder of the Trust, that, based upon the facts known to
the Administrative Trustees, 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 the Common Security Holder did not believe to be in, or
believed was 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 or her conduct was unlawful. In no event shall
any advance be made in instances where the Administrative Trustees, independent
legal counsel or Common Security Holder reasonably determine that a Company
Indemnified Person deliberately breached his or her 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 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.
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(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 or her and incurred by him or her in
any such capacity, or arising out of his or her status as such, whether or not
the Debenture Issuer would have the power to indemnify him or her 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 or she 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) shall, unless otherwise provided when
authorized or ratified, 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) The Sponsor agrees to indemnify the (i) Property Trustee, (ii)
the Delaware Trustee, (iii) any Affiliate of the Property Trustee or the
Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, represen tatives, custodians, nominees or agents of
the Property Trustee or the Delaware Trustee (each of the Persons in (i)
through (iv), including the Property Trustee and the Delaware Trustee in
their respective individual capacities, being referred to as a "Fiduciary
Indemnified Person") for, and to hold each Fiduciary Indemnified Person
harmless against, any and all loss, liability, damage, action, suit, claim
or expense including taxes (other than taxes based on the income of such
Fiduciary Indemnified Person) of any kind and nature whatsoever incurred
without negligence or bad faith on the part of such Fiduciary Indemnified
Person, 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
against or investigating any claim or liability in connection with the
exercise or performance of any of the powers or duties of such Fiduciary
Indemnified Person hereunder. The obligation to indemnify as set forth in
this Section 10.4(b) shall survive the resignation or removal of the
Property Trustee or the Delaware Trustee and the satisfaction and discharge
of this Declaration.
(c) The Sponsor agrees to pay the Property Trustee and the Delaware
Trustee, from time to time, such compensation for all services rendered by
the Property Trustee and the Delaware Trustee hereunder as may be mutually
agreed upon in writing by the Sponsor and the Property Trustee or the
Delaware Trustee, as the case may be, and, except as otherwise expressly
provided herein, to reimburse the Property Trustee and the Delaware Trustee
upon its or their request for all
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reasonable expenses (including legal fees and expenses), disbursements and
advances incurred or made by the Property Trustee or the Delaware Trustee,
as the case may be, in accordance with the provisions of this Declaration,
except any such expense, disbursement or advance as may be attributable to
its or their negligence or bad faith.
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.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
-----------
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
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
Administrative Trustees 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
Administrative Trustees.
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(b) The Administrative Trustees 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 Administrative Trustees
shall endeavor to deliver all such information statements within 30 days
after the end of each Fiscal Year of the Trust.
(c) The Administrative Trustees 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 Administrative Trustees on behalf of
the Trust with any state or local taxing authority.
SECTION 11.3 Banking.
-------
The Trust may 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 Administrative Trustees; provided, however, that the Property
-------- -------
Trustee shall designate the signatories for the Property Trustee Account.
SECTION 11.4 Withholding.
-----------
The Trust and the Administrative Trustees 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 Administrative Trustees shall cause
to be filed 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 claim of excess 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.
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ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
----------
(a) Except as otherwise provided in this Declaration (including
Section 7 of Annex I hereto) or by any applicable terms of the Securities,
this Declaration may only be amended by a written instrument approved and
executed by:
(i) the Sponsor and the Administrative Trustees (or, if there
are more than two Administrative Trustees, a majority of the
Administrative Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property
Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware
Trustee.
(b) No amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers' 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);
(iii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee shall have first received:
(A) an Officers' 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
(B) 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) and that all conditions precedent to the
execution and delivery of such amendment have been
satisfied;
provided, however, that the Property Trustee shall not be required to sign any
- -------- -------
such amendment; 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;
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(B) reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the Trust Indenture
Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act.
(c) At such time after the Trust has issued any Securities that
remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder (other than an amendment pursuant
to (g) below) may be effected only with such additional requirements as may
be set forth in the terms of such Securities;
(d) Section 10.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders;
(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
V to increase or decrease the number of, and appoint and remove Trustees
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 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;
(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; and
(iii) to modify, eliminate or add any provisions of the Declaration
to such extent as shall be necessary to enable the Trust or the
Sponsor to conduct an Exchange Offer in the manner contemplated by the
Registration Rights Agreement;
provided, however, that in each such case above, such action shall not adversely
- -------- -------
affect in any material respect the interests of the Holders, and any such
amendments of this Declaration shall become effective when notice thereof is
given to the Holders.
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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 Administrative Trustees (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
Administrative Trustees 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 Administrative Trustees one or more notices in writing stating that the
signing Holders 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 Capital Security Certificates 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:
(i) notice of any such meeting shall be given to all the Holders
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 may be taken without a meeting if
a consent in writing setting forth the action so taken is signed by
the Holders 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; and the Administrative Trustees 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 Administrative Trustees;
(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 eleven months
from the date thereof unless otherwise provided in the proxy; every
proxy shall be revocable at the pleasure of the Holder executing it;
and, 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
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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
Administrative Trustees or by such other Person that the
Administrative Trustees 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 Administrative Trustees, 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,
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.
ARTICLE
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 that:
(a) the Property Trustee is a Delaware banking corporation, a
national banking association or a bank or trust company, duly organized,
validly existing and in good standing under the laws of the United States
or the State of Delaware as the case may be, with corporate power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
(b) the execution, delivery and performance by the Property Trustee
of this Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee; and this Declaration has been
duly executed and de livered by the Property Trustee and under Delaware
law (excluding any securities laws) constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in accordance
with its terms, subject to applicable bank ruptcy, 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);
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(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 federal or state banking authority governing the trust
powers of the Property Trustee 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:
(a) the Delaware Trustee is a Delaware banking corporation, a
national banking association or a bank or trust company, duly organized,
validly existing and in good standing under the laws of the United States
or the State of Delaware, as the case may be, with corporate 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; and this Declaration has been
duly executed and delivered by the Delaware Trustee and under Delaware law
(excluding any securities laws) 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) the execution, delivery and performance of this Declaration by
the Delaware Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Delaware Trustee; and
(d) no consent, approval or authorization of, or registration with
or notice to, any federal or Delaware banking authority governing the trust
powers of the Delaware Trustee is required for the execution, delivery or
performance by the Delaware Trustee of this Declaration; and
(e) 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, and is a Person that
satisfies for the Trust Section 3807(a) of the Business Trust Act.
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ARTICLE XV
REGISTRATION RIGHTS
SECTION 14.1 Registration Rights Agreement; Liquidated Damages.
-------------------------------------------------
The Holders of the Series A Capital Securities, the Series A
Debentures and the Series A Capital Securities Guarantee are entitled to the
benefits of the Registration Rights Agreement and the Liquidated Damages
Agreement. In certain limited circumstances set forth in the Registration Rights
Agreement and the Liquidated Damages Agreement, the Debenture Issuer shall be
required to pay liquidated damages with respect to the Series A Debentures.
Unless otherwise stated, the term "Distribution," as used in this Declaration,
includes any and all liquidated damages.
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 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, overnight courier service or confirmed telecopy, as
follows:
(a) if given to the Trust, in care of the Administrative Trustees at
the Trust's mailing address set forth below (or such other address as the
Trust may give notice of to the Property Trustee, the Delaware Trustee and
the Holders):
Astoria Capital Trust I
c/o Astoria Financial Corporation
One Astoria Federal Plaza
Lake Success, New York 11042
Attention.: Monte N. Redman
Telephone: (516) 327-7892
Telecopier: (516) 327-7860
(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):
WILMINGTON TRUST COMPANY
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Telephone: (302) 651-1000
Telecopier: (302) 651-8882
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(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):
WILMINGTON TRUST COMPANY
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Telephone: (302) 651-1000
Telecopier: (302) 651-8882
(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):
Astoria Financial Corporation
One Astoria Federal Plaza
Lake Success, New York 11042
Attention.: Alan P. Eggleston, Esq.
Telephone: (516) 327-7876
Telecopier: (516) 327-7860
(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 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 15.2 Governing Law.
-------------
This Declaration and the rights of the parties hereunder shall be
governed by and construed in accordance with the laws of the State of Delaware
without regard to conflict of laws principles thereof.
SECTION 15.3 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.
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SECTION 15.4 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 15.5 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
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether or not so expressed.
SECTION 15.6 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 15.7 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 each of the Trustees to one or more 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 has caused these presents to be
executed as of the day and year first above written.
/s/ Frank E. Fusco
------------------
Frank E. Fusco
as Administrative Trustee
/s/ Monte N. Redman
-------------------
Monte N. Redman
as Administrative Trustee
/s/ Thomas E. Lavery
--------------------
Thomas E. Lavery
as Administrative Trustee
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ James P. Lawler
-------------------
Name: James P. Lawler
Title: Vice President
WILMINGTON TRUST COMPANY,
as Property Trustee
By: /s/ James P. Lawler
-------------------
Name: James P. Lawler
Title: Vice President
ASTORIA FINANCIAL CORPORATION,
as Sponsor and Debenture Issuer
By:/s/ George L. Engelke, Jr.
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George L. Engelke, Jr.
Chairman of the Board, President
and Chief Executive Officer
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ANNEX I
TERMS OF
9.75% CAPITAL SECURITIES, SERIES A/SERIES B
9.75% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration, dated
as of October 28, 1999 (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 Offering Memorandum referred to
below in Section 2(c) of this Annex I):
1. Designation and Number.
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(a) Capital Securities. 125,000 Series A Capital Securities of the
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Trust and 125,000 Series B Capital Securities of the Trust, each series with an
aggregate liquidation amount with respect to the assets of the Trust One Hundred
Twenty Five Million Dollars ($125,000,000) and with a liquidation amount with
respect to the assets of the Trust of One Thousand Dollars ($1,000) (the
"Liquidation Amount") per security, are hereby designated for the purposes of
identification only as "9.75% Capital Securities, Series A" and "9.75% Capital
Securities, Series B," respectively (collectively, 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 exchange or quotation system on or in which
the Capital Securities are listed, traded or quoted.
(b) Common Securities. 3,866 Common Securities of the Trust with an
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aggregate liquidation amount with respect to the assets of the Trust of Three
Million Eight Hundred Sixty Six Thousand Dollars ($3,866,000) and a liquidation
amount with respect to the assets of the Trust of $1,000 per security, are
hereby designated for the purposes of identification only as "9.75% Common
Securities" (the "Common Securities"). The certificates evidencing the Common
Securities shall be substantially in the form of Exhibit A-2 to the Declaration,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice.
2. Distributions.
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(a) Distributions on each Security will be payable at a fixed rate per
annum of 9.75% (the "Coupon Rate") of the liquidation amount of $1000 per
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 semi-
annual period will bear additional Distributions thereon compounded semi-
annually at the Coupon Rate (to the extent permitted by applicable law).
Pursuant to the Registration Rights Agreement and the Liquidated Damages
Agreement, in certain limited circumstances the Debenture Issuer will be
required to pay Liquidated Damages (as defined in the Registration Rights
Agreement and the Liquidated Damages Agreement) with respect to the Debentures.
The term
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"Distributions," as used herein, includes distributions of any and all such
interest and Liquidated Damages, if any, payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made with respect
to the Debentures held by the Property Trustee and to the extent the Property
Trustee has funds 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,
if no Distributions have been paid, from October 28, 1999 and will be payable
semi-annually in arrears on May 1/st/ and November 1/st/ , of each year,
commencing May 1, 2000 (each, a "Distribution Date"), except as otherwise
described below. Distributions will be computed on the basis a 360-day year of
twelve 30-day months. 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
10 consecutive semi-annual periods, including the first such semi-annual period
during such period (each an "Extension Period"), during which Extension Period
no interest shall be due and payable on the Debentures, provided that no
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Extension Period shall end on a date other than an Interest Payment Date for the
Debentures or extend beyond the Maturity Date of the Debentures. As a
consequence of such defer ral, Distributions (other than Liquidated Damages, if
any) will also be deferred. Notwithstanding 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 semi-
annually 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 does not
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cause such Extension Period, together with all such previous and further
extensions within such Extension Period, to exceed 10 consecutive semi-annual
periods, including the first semi-annual period during such Extension Period,
end on a date other than an Interest Payment Date for the Debentures 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 close of
business on the 15th day of the month immediately preceding the month in which
relevant the Distribution Date occurs, which Distribution Dates correspond to
the Interest Payment Dates for the Debentures. Subject to any applicable laws
and regulations and the provisions of the Declaration, each such payment with
respect to the Capital Securities will be made as described under the heading
"Description of Capital Securities--Form, Denomination, Book-Entry Procedures
and Transfer" in the Offering Memorandum dated October 25, 1999 of the Debenture
Issuer and the Trust relating to the Securities and the Debentures. 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 Distributions payable on such date
will be made on the next succeeding day that is a Business Day (and without
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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 that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders.
3. Liquidation Distribution Upon Dissolution.
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In the event of any dissolution of the Trust, the Trust shall be
liquidated by the Administrative Trustees as expeditiously as the Administrative
Trustees determine to be possible by distributing to the Holders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, a Like Amount (as defined below) of 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 satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an amount
equal to the aggregate of the liquidation amount of $1,000 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 legally available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust with respect to the Securities shall be paid on a Pro Rata
basis.
4. Redemption and Distribution.
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(a) Upon the repayment of the Debentures (with premium, if any) in
whole or in part, at maturity or otherwise (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 written 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 on the Maturity Date, the Maturity Redemption Price (as defined
below), (ii) in the case of the optional prepayment of the Debentures prior to
the Initial Optional Redemption Date and 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 on or after the Initial
Optional Redemption Date, 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 prior written notice of
such redemption.
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(b) (i) The "Maturity Redemption Price" shall mean an amount equal
to 100% of the principal of, plus accrued and unpaid interest (including
Compounded Interest and Additional Sums, if any, thereon to the date of
redemption) on, the Debentures as of the Maturity Date thereof.
(ii) 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 November 1/st/ , 2009 (the "Initial Optional
Redemption Date"), 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 an amount
equal to the applicable redemption price set forth below plus accumulated and
unpaid Distributions thereon, if any, to the date of such redemption if redeemed
during the 12-month period beginning November 1/st/ , of the years indicated
below:
Percentage of
Year Liquidation Amount
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2009 104.875%
2010 104.388%
2011 103.900%
2012 103.413%
2013 102.925%
2014 102.438%
2015 101.950%
2016 101.463%
2017 100.975%
2018 100.488%
2019 and thereafter 100.000%
(c) If at any time an Investment Company Event, a Regulatory Capital
Event or a Tax 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 prior to the Initial Optional Redemption Date, 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.
"Investment Company Event" shall mean the receipt by the Debenture
Issuer and the Trust of an opinion of independent securities 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
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laws or any regulations thereunder of the United States or any rules, guidelines
or policies of any applicable regulatory authority for the Debenture Issuer or
(b) any official administrative pronouncement or judicial decision interpreting
or applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of original
issuance of the Securities, the Trust is, or within 90 days of the date of such
opinion will be, considered an Investment Company that is required to be
registered under the Investment Company Act.
"Regulatory Capital Event" shall mean the receipt by the Debenture
Issuer and the Trust of an opinion of independent bank regulatory counsel
experienced in such matters to the effect that as a result of (a) any amendment
to, or change (including any announced prospective change) in, the laws or any
regulations thereunder of the United States or any rules, guidelines or policies
of an applicable regulatory authority for the Debenture Issuer or (b) any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of original
issuance of the Securities, the Capital Securities do not constitute, or within
90 days of the date of such opinion will not constitute, Tier 1 Capital (or its
then equivalent if the Sponsor were subject to such capital requirement);
provided, however, that the distribution of the Debentures in connection with
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the liquidation of the Trust by the Debenture Issuer shall not in and of itself
constitute a Regulatory Capital Event.
"Special Event Redemption Price" shall mean, with respect to any
redemption of the Securities following a Special Event, an amount in cash equal
to the greater of (i) 100% of the principal amount of the Securities or (ii) the
sum, as determined by a Quotation Agent (as defined in the Indenture), of the
present values of the remaining scheduled payments of principal and interest on
such Securities, discounted to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate (as defined in the Indenture), plus, in the case of each of (i)
and (ii), any accrued and unpaid interest thereon (including Compounded Interest
and Additional Sums, if any) to the date of such redemption.
A "Tax Event" shall occur upon receipt by the Debenture Issuer and the
Trust of an opinion of independent tax 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 political subdivision or taxing 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 which pronouncement or decision is announced on or after the date
of original issuance of the Securities, there is more than an insubstantial risk
that (i) the Trust is, or will be within 90 days of the date of such opinion,
subject to United States federal income tax with respect to income received or
accrued on the Debentures, (ii) the interest payable by the Debenture Issuer on
the Debentures is not, or within 90 days of the date of such opinion will not
be, deductible by the Debenture Issuer, in whole or in part, for United States
federal income tax purposes, or (iii) the Trust is, or will be within 90 days of
the date of such opinion, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
(d) In the case of an optional redemption, if fewer than all the
outstanding Securities are to be so redeemed, the Common Securities and the
Capital Securities shall be
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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 redemption, in whole, but not in part, on
or after the Initial Optional Redemption Date.
(e) On and from the date fixed by the Administrative Trustees for any
distribution of Debentures and liquidation of the Trust: (i) the Securities will
no longer be deemed to be outstanding, (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 cer tificates
representing the Debentures to be delivered upon such distribution, and (iii)
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.
(f) 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 semi-annual Distribution periods terminating on or before the
date of redemption.
(g) The procedure with respect to redemptions or distributions of
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 redemption of the Debentures. 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 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 particular Securities to be redeemed shall be selected
on a Pro Rata basis (based upon Liquidation Amounts) not more than 60 nor
less than 30 days prior to the date fixed for redemption from the
outstanding Securities not previously called for redemption; provided,
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however, that with respect to Holders that would be required to hold less
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than 100 but more than zero Securities as a result of such redemption, the
Trust shall redeem Securities of each such Holder so that after such
redemption such Holder shall hold either 100 Securities or such Holder no
longer holds any Securities, and shall use such method (including, without
limitation, by lot) as the Trust shall deem fair and appropriate; provided,
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further, that any such redemption may be made on the basis of the aggregate
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Liquidation Amount of Securities held by each Holder thereof and may be
made by making such adjustments as the
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Trust deems fair and appropriate in order that fractional Securities shall
not thereafter remain outstanding. With respect to 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) or any 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
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Debenture Issuer has paid the Property Trustee a sufficient amount of cash
in connection with the related redemption or maturity of the Debentures by
10:00 a.m., New York City time, on the Maturity Date or the date of
redemption, as the case re quires, the Property Trustee will deposit
irrevocably with the Clearing Agency or its nominee (or successor Clearing
Agency or its nominee) immediately available funds sufficient to pay the
applicable Redemption Price with respect to such Capital Securities and
will give the Clearing Agency irrevocable instructions and authority to pay
the Redemption Price to the relevant Clearing Agency Participants, and (B)
with respect to Capital Securities issued in certificated form and Common
Securities, provided that the Debenture Issuer has paid the Property
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Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Property Trustee will
irrevocably deposit with the paying agent for the Capital Securities (if
other than the Property Trustee) funds sufficient to pay the applicable
Redemption Price to the Holders by check mailed to the address of the
relevant Holder appearing on the books and records of the Trust on the
redemption date, and provided further, that any such payment shall become
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due only upon surrender by the Holder of the related certificated Capital
Securities. 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 re ceive
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
at 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 Administrative Trustees nor the Trust shall be required to
register or cause to be registered the transfer of (i) any Securities beginning
at 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). If payment of the Re demption
Price with respect to any Securities is improperly withheld or refused and not
paid either
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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) with respect to Capital Securities
issued in book-entry form, the Clearing Agency or its nominee (or any
successor Clearing Agency or its nominee), (B) with respect to Capital
Securities issued in certificated form, to the Holders thereof, and (C)
with respect to the Common Securities, to the Holders thereof.
(vi) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws and banking laws), 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.
5. Voting Rights - Capital Securities.
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(a) Except as provided under Sections 5(b), 6(b) and 7 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 5.07 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
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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. 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 the Trust will continue to be classified as a
grantor trust for United States federal income tax purposes after taking any
such action into account.
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 redemption, on the redemption date), then a Holder of
Capital Securities may institute a proceeding directly against the Debenture
Issuer for enforcement of payment to such Holder of the principal of or interest
on a Like Amount of Debentures (a "Direct Action") on or after the respective
due date specified in the Debentures. In
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connection with such Direct Action, the Common Securities Holder 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 second preceding sentence, or
except as set forth in the first sentence of Section 3.8(e) of the Declaration,
the Holders of Capital 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 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 Property Trustee will cause a notice of any
meeting at which Holders of Capital Securities are entitled to vote 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 consent.
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.
6. Voting Rights - Common Securities.
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(a) Except as provided under Sections 6(b), 6(c), and 7 or as
otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) Unless a Debenture 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 a Debenture Event of Default has occurred and is continuing, the
Property Trustee and the Delaware Trustee may be removed at such time by the
Holders of a Majority in Liquidation Amount of the outstanding Capital
Securities. In no event will the Holders of the Capital Securities have the
right to vote to appoint, remove or replace the Administrative Trustees, which
voting rights are vested exclusively in the Sponsor as the Holder of the Common
Securities. No resignation or removal of a Trustee and no appointment of a
successor trustee shall be effective until the acceptance of appointment by the
successor trustee in accordance with the provisions of the Declaration.
(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 under Section 5.07 of
the Indenture, (iii) exercise any right to rescind or annul a declaration of
acceleration of the maturity of
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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,
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however, that where a consent under the Indenture would require the consent of
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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. 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 the Trust will
continue to be classified as a grantor trust for United States federal income
tax purposes after taking any such action into account.
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 redemption, on the redemption date), then a Holder of
Common Securities may institute a Direct Action directly against the Debenture
Issuer 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 such Direct Action, the
rights of the Common Securities Holder will be subordinated to the rights of
Holders of Capital Securities in respect of any payment from the Debenture
Issuer 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 Administrative Trustees 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 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.
7. 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 Administrative Trustees without the consent of the
Holders to (i) cure any ambiguity, correct or
I-10
<PAGE>
supplement any provisions in the Declaration that may be inconsistent with any
other provisions, or 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, (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 or (iii) modify, eliminate or add any provisions of
the Declaration to such extent as shall be necessary to enable the Trust or the
Sponsor to conduct an Exchange Offer in the manner contemplated by the
Registration Rights Agreement; provided, however, that in each case, such
-------- -------
action shall not adversely affect in any material respect the interests of any
Holder, and any such amendments of the Declaration shall become effective when
notice thereof is given to the Holders. The Declaration may also be amended by
the Trustees 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 of an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust for United
States federal income tax purposes or the Trust's exemption from status as an
Investment Company under the Investment Company Act; provided, however, 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 on, or the
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.
8. 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 liquidation amount of the Securities held by such
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 such Holder relative to the aggregate liquidation amount of all Capital
Securities outstanding and then, 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
such Holder relative to the aggregate liquidation amount of all Common
Securities outstanding.
9. 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 any other payments
to which they are entitled at such time.
I-11
<PAGE>
10. Acceptance of Capital Securities Guarantee, Common Securities
-------------------------------------------------------------
Guarantee. Indenture and Debentures.
-----------------------------------
Each Holder of Capital Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Capital Securities
Guarantee, the Common Securities Guarantee, the Indenture and the Debentures, as
applicable, including the subordination provisions therein.
11. No Preemptive Rights.
--------------------
Neither the issuance of Capital Securities, nor the issuance of Common
Securities is subject to preemptive or other similar rights. The Holders shall
have no preemptive or similar rights to subscribe for any additional securities.
12. 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 applicable, and the
Indenture (including any supplemental indenture) to a Holder without charge upon
written request to the Trust at its principal place of business.
I-12
<PAGE>
EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[IF THIS CAPITAL SECURITY IS A GLOBAL 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 CLEARING AGENCY 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 CLEARING AGENCY AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO., 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.]
THIS CAPITAL SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAW. NEITHER THIS CAPITAL 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.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH ASTORIA FINANCIAL
CORPORATION (THE "CORPORATION") OR ANY "AFFILIATE" OF THE CORPORATION WAS THE
OWNER OF THIS CAPITAL SECURITY (OR ANY PREDECESSOR OF THIS CAPITAL SECURITY)
ONLY (A) TO THE CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN
A1-1
<PAGE>
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS CAPITAL
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7)
OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS CAPITAL SECURITY FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF ASTORIA CAPITAL TRUST I (THE
"TRUST") AND THE CORPORATION PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii)
PURSUANT TO CLAUSE (D) TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUST A
LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING
MEMORANDUM DATED OCTOBER 25, 1999. SUCH HOLDER FURTHER AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS CAPITAL SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF ALSO
AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL
RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH
A "PLAN"), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON
OF ANY PLAN'S INVESTMENT IN THE ENTITY AND NO PERSON INVESTING "PLAN ASSETS" OF
ANY PLAN MAY ACQUIRE OR HOLD THE CAPITAL SECURITIES OR ANY INTEREST THEREIN,
UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE
UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-
60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND
HOLDING OF CAPITAL SECURITIES IS NOT PROHIBITED BY SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER
OR HOLDER OF THE CAPITAL SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO
HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS
NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A
PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON
ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR
ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT
A1-2
<PAGE>
PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN
A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.
THE CAPITAL SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS
HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 (100 CAPITAL SECURITIES)
AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF CAPITAL
SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000 (100
CAPITAL SECURITIES) SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF SUCH CAPITAL SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF DISTRIBUTIONS ON SUCH CAPITAL SECURITIES, AND SUCH PURPORTED
TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH CAPITAL
SECURITIES.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE
BOUND BY THE REGISTRATION RIGHTS AGREEMENT DATED AS OF OCTOBER ___, 1999, BY AND
AMONG THE TRUST, THE SPONSOR AND THE INITIAL PURCHASER NAMED THEREIN, AS AMENDED
FROM TIME TO TIME.
A1-3
<PAGE>
Certificate Number: [____________________] Aggregate Liquidation Amount:
$[___________]
CUSIP Number:[___________]
Certificate Evidencing Capital Securities
of
_____ Astoria Capital Trust I
Capital Securities, Series A
(liquidation amount $1,000 per Capital Security)
Astoria Capital Trust I, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that [Cede &
Co.]/1/ (the "Holder") is the registered owner of [$[___________] in aggregate
liquidation amount of Capital Securities of the Trust]/2/ [the aggregate
liquidation amount of Capital Securities of the Trust specified in Schedule A
hereto]/1/ representing undivided preferred beneficial interests in the assets
of the Trust designated the ___ Capital Securities, Series A (liquidation amount
$1,000 per Capital Security) (the "Capital Securities"). The Capital Securities
are transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. 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 the Trust, dated as of October ____, 1999,
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 (including any
supplemental 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 acceptance hereof, the Holder agrees, for United States federal
income tax purposes, to treat the Debentures as indebtedness and the Capital
Securities as evidence of indirect beneficial ownership in the Debentures.
- ---------------------------------
1 Insert in Global Capital Securities only.
2 Insert in Definitive Capital Securities only.
A1-4
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this
_______ day of _______________ ____.
ASTORIA CAPITAL TRUST I
By:
--------------------------------------
Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the ____% Capital Securities, Series A of Astoria Capital
Trust I referred to in the within-mentioned Declaration.
Dated: ,
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Property Trustee
By:
--------------------------------------
Authorized Signatory
A1-5
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions on each Capital Security will be payable at a fixed rate
per annum of ___% (the "Coupon Rate") of the liquidation amount of $1000 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
semi-annual period will bear interest thereon compounded semi-annually at the
Coupon Rate (to the extent permitted by applicable law). Pursuant to the
Registration Rights Agreement and the Liquidated Damages Agreement, in certain
limited circumstances the Debenture Issuer will be required to pay Liquidated
Damages (as defined in the Registration Rights Agreement and the Liquidated
Damages Agreement) with respect to the Debentures. The term "Distributions," as
used herein, includes such cash distributions and any and all such interest and
Liquidated Damages, if any, 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 Capital Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or,
if no Distributions have been paid, from October 28, 1999 and will be payable
semi-annually in arrears, on May 1/st/ and November 1/st/ of each year,
commencing May 1, 2000, except as otherwise described below. Distributions will
be computed on the basis of a 360-day year of twelve 30-day months. 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 10 consecutive semi-annual calendar
periods, including the first such semi-annual period during such extension
period (each an "Extension Period"), provided that no Extension Period shall end
-------- ----
on a date 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 (other than Liquidated Damages, if any) will also be deferred.
Notwithstanding such deferral, semi-annual 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 semi-annually during any such Extension Period. Prior
to the termination of any 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 (i) exceed 10 consecutive semi-
annual periods, including the first semi-annual period during such Extension
Period, (ii) end on a date other than an Interest Payment Date for the
Debentures or (iii) 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 record date immediately 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 receipt by the Sponsor of any and all required regulatory
approvals and to certain other conditions set forth in the Declaration and the
Indenture, the Property Trustee may, at the direction of the Sponsor, at any
time dissolve the Trust and after satisfaction of liabilities to creditors of
the Trust as provided by applicable law, cause the Debentures to be distributed
to the Holders of the Securities in liquidation of the Trust or, simultaneously
with any redemption of the Debentures, cause a Like Amount of the Securities to
be redeemed by the Trust.
The Capital Securities shall be redeemable as provided in the
Declaration.
A1-6
<PAGE>
-------------------------------------------------
ASSIGNMENT
-------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby assigns and transfers this Capital
Security Certificate to:
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Assignee's social security or tax identification number)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(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:
---------------------------------------------------------
- ----------------------
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 Exchange Act of 1934, as amended.
A1-7
<PAGE>
[Include the following if the Capital Security bears a Restricted Securities
Legend]
In connection with any transfer of any of the Capital Securities evidenced by
this Certificate, the undersigned confirms that such Capital Securities are
being:
CHECK ONE BOX BELOW
(1) [ ] exchanged for the undersigned's own account without transfer; or
(2) [ ] transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended; or
(3) [ ] transferred to an institutional "accredited investor" within
the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501
under the Securities Act of 1933 that is acquiring the Capital
Securities for its own account, or for the account of such an
institutional "accredited investor," for investment purposes and
not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act of 1933, as
amended; or
(4) [ ] transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933, as
amended; or
(5) [ ] transferred pursuant to an effective registration statement.
Unless one of the boxes is checked, the Registrar will refuse to register any of
the Capital Securities evidenced by this Certificate in the name of any Person
other than the Holder hereof; provided, however, that if box (3) or (4) is
-------- -------
checked, the Registrar may require, prior to registering any such transfer of
the Capital Securities, such legal opinions, certifications and other
information as the Trust has reasonably requested to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act of 1933, as amended, such as
the exemption provided by Rule 144 under such Act; provided, further, that (i)
-------- -------
if box (2) is checked, by acceptance of this Certificate, the transferee shall
be deemed to have certified that it is a "qualified institutional buyer" (as
defined in Rule 144A) ("QIB") acquiring the Capital Securities for its own
account or for the account of another QIB over which it exercises sole
investment discretion and that it is aware that the Holder is relying upon the
exemption from registration afforded by Rule 144A in respect of the Holder's
transfer of Capital Securities to it or (ii) if box (3) is checked, the
transferee must also provide to the Registrar a Transferee Letter of
Representation in the form attached to the Offering Memorandum of the Trust
dated October ___, 1999; provided, further, that after the date that a
-------- -------
registration statement has been filed and so long as such Registration Statement
continues to be effective, only then may the Registrar permit transfers for
which box (5) has been checked.
Signature
--------------------------------
A1-8
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES 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.
THE HOLDER OF THIS COMMON SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THIS COMMON SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH ASTORIA FINANCIAL
CORPORATION (THE "CORPORATION") OR ANY "AFFILIATE" OF THE CORPORATION WAS THE
OWNER OF THIS COMMON SECURITY (OR ANY PREDECESSOR OF THIS COMMON SECURITY) ONLY
(A) TO THE CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS COMMON
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7)
OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS COMMON SECURITY FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF ASTORIA CAPITAL TRUST I (THE
"TRUST") AND THE CORPORATION PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. SUCH
HOLDER FURTHER AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS COMMON
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
A2-1
<PAGE>
Certificate Evidencing Common Securities
of
Astoria Capital Trust I
[___]% Common Securities
(liquidation amount $1,000 per Common Security)
Astoria Capital Trust I, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that Astoria
Financial Corporation (the "Holder") is the registered owner of [_____] common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust designated the [____]% Common Securities (liquidation amount
$1,000 per Common Security) (the "Common Securities"). Subject to the terms of
the Declaration (as defined below), the Common 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 Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of the Trust dated as of October ___, 1999, 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 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 Common Securities Guarantee to the extent provided therein.
By acceptance hereof, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
__________ day of _____________ 1999.
ASTORIA CAPITAL TRUST I
By:
-------------------------------------
Administrative Trustee
A2-2
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions on each Common Security will be payable at a rate of [_____]%
per annum (the "Coupon Rate") of the liquidation amount of $1000 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 semi-
annual period will bear interest thereon compounded semi-annually at the Coupon
Rate (to the extent permitted by applicable law). Pursuant to the Registration
Rights Agreement, in certain limited circumstances the Debenture Issuer will be
required to pay Liquidated Damages (as defined in the Registration Rights
Agreement) with respect to the Debentures. The term "Distributions", as used
herein, includes such cash distributions and any and all such interest and
Liquidated Damages, if any, 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, if no
Distributions have been paid, from October ___, 1999 and will be payable semi-
annually in arrears, on May 1 and November 1 of each year, commencing May 1,
2000, except as otherwise described below. Distributions will be computed on the
basis of a 360-day year of twelve 30-day months. 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 10 consecutive calendar semi-annual periods, including
the first such semi-annual period during such extension period (each an
"Extension Period"), provided that no Extension Period shall end on a date 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. Notwithstanding such deferral, semi-annual 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 semi-annually during any such
Extension Period. Prior to the termination of any 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 (i)
exceed 10 consecutive semi-annual periods, including the first semi-annual
period during such Extension Period, (ii) end on a date other than an Interest
Payment Date for the Debentures or (iii) 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 record date immediately
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 receipt by the Sponsor of any and all required regulatory
approvals and to certain other conditions set forth in the Declaration and the
Indenture, the Property Trustee may, at the direction of the Sponsor, at any
time dissolve the Trust and cause the Debentures to be distributed to the
Holders of the Securities in liquidation of the Trust or, simultaneously with
any redemption of the Debentures, cause a Like Amount of the Securities to be
redeemed by the Trust.
The Common Securities shall be redeemable as provided in the Declaration.
Under certain circumstances, the rights of the holders of the Common
Securities shall be subordinate to the rights of the holders of the Capital
Securities, as provided in the Declaration.
A2-3
<PAGE>
EXHIBIT 4.6
Certificate Evidencing Common Securities
of
Astoria Capital Trust I
9.75% Common Securities
(liquidation amount $1,000 per Common Security)
Astoria Capital Trust I, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that Astoria
Financial Corporation (the "Holder") is the registered owner of 3,866 common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust designated the 9.75% Common Securities (liquidation amount
$1,000 per Common Security) (the "Common Securities"). Subject to the terms of
the Declaration (as defined below), the Common 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 Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust dated as of October 28, 1999, 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 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 Common Securities Guarantee to the extent provided therein.
By acceptance hereof, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
28/th/ day of October, 1999.
ASTORIA CAPITAL TRUST I
By:/s/ Monte N. Redman
-------------------
Monte N. Redman
Administrative Trustee
<PAGE>
Distributions on each Common Security will be payable at a rate of 9.75%
per annum (the "Coupon Rate") of the liquidation amount of $1000 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 semi-
annual period will bear interest thereon compounded semi-annually at the Coupon
Rate (to the extent permitted by applicable law). Pursuant to the Registration
Rights Agreement, in certain limited circumstances the Debenture Issuer will be
required to pay Liquidated Damages (as defined in the Registration Rights
Agreement) with respect to the Debentures. The term "Distributions", as used
herein, includes such cash distributions and any and all such interest and
Liquidated Damages, if any, 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, if no
Distributions have been paid, from October 28, 1999 and will be payable semi-
annually in arrears, on May 1/st/ and November 1/st/ of each year, commencing
May 1, 2000, except as otherwise described below. Distributions will be computed
on the basis of a 360-day year of twelve 30-day months. 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 10 consecutive calendar semi-annual periods, including
the first such semi-annual period during such extension period (each an
"Extension Period"), provided that no Extension Period shall end on a date 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. Notwithstanding such deferral, semi-annual 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 semi-annually during any such
Extension Period. Prior to the termination of any 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 (i)
exceed 10 consecutive semi-annual periods, including the first semi-annual
period during such Extension Period, (ii) end on a date other than an Interest
Payment Date for the Debentures or (iii) 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 record date immediately
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 receipt by the Sponsor of any and all required regulatory
approvals and to certain other conditions set forth in the Declaration and the
Indenture, the Property Trustee may, at the direction of the Sponsor, at any
time dissolve the Trust and cause the Debentures to be distributed to the
Holders of the Securities in liquidation of the Trust or, simultaneously with
any redemption of the Debentures, cause a Like Amount of the Securities to be
redeemed by the Trust.
The Common Securities shall be redeemable as provided in the Declaration.
Under certain circumstances, the rights of the holders of the Common
Securities shall be subordinate to the rights of the holders of the Capital
Securities, as provided in the Declaration.
<PAGE>
EXHIBIT 4.7
FORM OF SERIES B CAPITAL SECURITY CERTIFICATE
IF THE SERIES B CAPITAL SECURITIES CERTIFICATE IS TO BE A GLOBAL
SECURITIES CERTIFICATE, INSERT-- [THIS SERIES B CAPITAL SECURITY IS A GLOBAL
CAPITAL SECURITY WITHIN THE MEANING OF THE AMENDED AND RESTATED DECLARATION OF
TRUST (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 SERIES B CAPITAL SECURITY IS EXCHANGEABLE FOR SERIES B
CAPITAL SECURITIES REGIS TERED 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 SERIES B CAPITAL SECURITY (OTHER THAN A
TRANSFER OF THIS SERIES B 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 SERIES B CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE CLEARING AGENCY TO ASTORIA CAPITAL TRUST I (THE "TRUST")
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SERIES B
CAPITAL SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE CLEARING AGENCY AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO., 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.]
THE HOLDER OF THIS SERIES B CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF
ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT,
INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH
A "PLAN"), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON
OF ANY PLAN'S INVESTMENT IN THE ENTITY AND NO PERSON INVESTING "PLAN ASSETS" OF
ANY PLAN MAY ACQUIRE OR HOLD THE SERIES B CAPITAL SECURITIES OR ANY INTEREST
THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF
AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION
96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS
PURCHASE AND HOLDING OF SERIES B CAPITAL SECURITIES IS NOT PROHIBITED BY SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR
HOLDING. ANY PURCHASER OR HOLDER OF THE SERIES B CAPITAL SECURITIES OR ANY
INTEREST THEREIN WILL BE
<PAGE>
DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i)
IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA,
OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER
PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON
OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH
PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION
UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO
APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.
THE SERIES B CAPITAL SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 (100 SERIES B
CAPITAL SECURITIES) AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED
TRANSFER OF SERIES B CAPITAL SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT
OF LESS THAN $100,000 (100 SERIES B CAPITAL SECURITIES) SHALL BE DEEMED TO BE
VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE
DEEMED NOT TO BE THE HOLDER OF SUCH SERIES B CAPITAL SECURITIES FOR ANY PURPOSE,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON SUCH SERIES B
CAPITAL SECURITIES, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO
INTEREST WHATSOEVER IN SUCH SERIES B CAPITAL SECURITIES.
<PAGE>
Certificate Number: _____ Aggregate Liquidation Amount:
CUSIP Number: 04626K AC5 $______________
Certificate Evidencing Exchange Capital Securities
of
Astoria Capital Trust I
9.75% Capital Securities, Series B
(liquidation amount $1,000 per Capital Security)
Astoria Capital Trust I, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that [Cede & Co.]1
(the "Holder") is the registered owner of $__________ in aggregate liquidation
amount of Capital Securities of the Trust representing undivided preferred
beneficial interests in the assets of the Trust designated the 9.75% Capital
Securities, Series B (liquidation amount $1,000 per Capital Security) (the
"Exchange Capital Securities"). The Exchange Capital Securities are transferable
on the books and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer. The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Exchange Capital Securities represented hereby
are issued and shall in all respects be subject to the provisions of the Amended
and Restated Declaration of Trust, dated as of October 28, 1999, as the same may
be amended from time to time (the "Declaration"), including the designation of
the terms of the Exchange 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 (including any
supplemental 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 acceptance hereof, the Holder agrees, for United States federal
income tax purposes, to treat the Debentures as indebtedness and the Exchange
Capital Securities as evidence of indirect beneficial ownership in the
Debentures.
- --------------
1 Insert in Global Security only.
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this _____
day of ______________ , 2000.
ASTORIA CAPITAL TRUST I
By: ____________________________
Monte N. Redman
Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 9.75% Capital Securities, Series B of Astoria Capital
Trust I referred to in the within-mentioned Declaration.
Dated: ______________ , 2000.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Property Trustee
By: ____________________________
Authorized Signatory
<PAGE>
Distributions on each Exchange Capital Security will be payable at a
fixed rate per annum of 9.75% (the "Coupon Rate") of the liquidation amount of
$1000 per Exchange 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 semi-annual period will bear interest thereon
compounded semi-annually at the Coupon Rate (to the extent permitted by
applicable law). The term "Distributions," as used herein, includes such cash
distributions and any and all such interest, if any, 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 Exchange Capital Securities will be cumulative,
will accumulate from the most recent date to which Distributions have been paid
or, if no Distributions have been paid, from October 28, 1999 and will be
payable semi-annually in arrears, on May 1/st/ and November 1/st/ of each year,
commencing May 1, 2000, except as otherwise described below. Distributions will
be computed on the basis of a 360-day year of twelve 30-day months. 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 10 consecutive semi-annual calendar
periods, including the first such semi-annual period during such extension
period (each an "Extension Period"), provided that no Extension Period shall end
-------- ----
on a date 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. Notwithstanding such deferral, semi-annual
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 semi-annually
during any such Extension Period. Prior to the termination of any 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 (i) exceed 10 consecutive semi-annual periods, including the first semi-
annual period during such Extension Period, (ii) end on a date other than an
Interest Payment Date for the Debentures or (iii) 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 record date
immediately 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 receipt by the Sponsor of any and all required regulatory
approvals and to certain other conditions set forth in the Declaration and the
Indenture, the Property Trustee may, at the direction of the Sponsor, at any
time dissolve the Trust and after satisfaction of liabilities to creditors of
the Trust as provided by applicable law, cause the Debentures to be distributed
to the Holders of the Securities in liquidation of the Trust or, simultaneously
with any redemption of the Debentures, cause a Like Amount of the Securities to
be redeemed by the Trust.
The Exchange Capital Securities shall be redeemable as provided in the
Declaration.
<PAGE>
-------------------------------------------------
ASSIGNMENT
-------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby assigns and transfers this Exchange
Capital Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- ------------------------------------------------------------------------- agent
to transfer this Exchange Capital Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: __________________
Signature:_________________________________________
(Sign exactly as your name appears on the other side of this Exchange Capital
Security Certificate)
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 Exchange Act of 1934, as amended.
<PAGE>
COMMON SECURITY CERTIFICATE
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES 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.
THE HOLDER OF THIS COMMON SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS COMMON SECURITY,
PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS
TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE DATE HEREOF AND THE
LAST DATE ON WHICH ASTORIA FINANCIAL CORPORATION (THE "CORPORATION")
OR ANY "AFFILIATE" OF THE CORPORATION WAS THE OWNER OF THIS COMMON
SECURITY (OR ANY PREDECESSOR OF THIS COMMON SECURITY) ONLY (A) TO THE
CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS COMMON
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER
THE SECURITIES ACT THAT IS ACQUIRING THIS COMMON SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER
OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE
RIGHT OF ASTORIA CAPITAL TRUST I (THE "TRUST") AND THE CORPORATION PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM. SUCH HOLDER FURTHER
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS COMMON
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.
<PAGE>
EXHIBIT 4.8
--------------------------------
COMMON SECURITIES GUARANTEE AGREEMENT
ASTORIA FINANCIAL CORPORATION
Dated as of October 28, 1999
--------------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
Page
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation..................................3
ARTICLE II
GUARANTEE
SECTION 2.1. Guarantee.......................................................4
SECTION 2.2. Waiver of Notice and Demand.....................................4
SECTION 2.3. Obligations Not Affected........................................4
SECTION 2.4. Rights of Holders...............................................5
SECTION 2.5. Guarantee of Payment............................................5
SECTION 2.6. Subrogation.....................................................5
SECTION 2.7. Independent Obligations.........................................6
ARTICLE III
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 3.1. Limitation of Transactions......................................6
SECTION 3.2. Ranking.........................................................7
ARTICLE IV
TERMINATION
SECTION 4.1. Termination.....................................................7
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Successors and Assigns..........................................7
SECTION 5.2. Amendments......................................................8
SECTION 5.3. Notices.........................................................8
SECTION 5.4. Benefit.........................................................9
SECTION 5.5. Governing Law...................................................9
<PAGE>
COMMON SECURITIES GUARANTEE AGREEMENT
This COMMON SECURITIES GUARANTEE AGREEMENT (the "Common
Securities Guarantee"), dated as of October 28, 1999, is executed and delivered
by ASTORIA FINANCIAL CORPORATION, a Delaware corporation (the "Guarantor"), for
the benefit of the Holders (as defined herein) from time to time of the Common
Securities (as defined herein) of ASTORIA CAPITAL TRUST I, a Delaware business
trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of October 28, 1999, by and among the
Trustees of the Issuer named therein, the Guarantor, as sponsor, and the holders
from time to time of undivided beneficial interests in the assets of the Issuer,
the Issuer is issuing on the date hereof 3,866 common securities having an
aggregate liquidation amount of Three Million Eight Hundred Sixty Six Thousand
Dollars ($3,866,000), to meet the capital requirements of the Trust; such common
securities being designated the 9.75% Common Securities (the "Common
Securities").
WHEREAS, as incentive for the Holders to purchase the Common
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Common Securities Guarantee, to pay the Guarantee
Payments (as defined herein) to the Holders of the Common Securities and to make
certain other payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering the
Series A Capital Securities Guarantee Agreement, dated as of October 28, 1999
(the "Series A Capital Securities Guarantee"), for the benefit of the holders of
the Series A Capital Securities (as defined in the Declaration) and upon
consummation of the Exchange Offer (as defined in the Declaration) will execute
and deliver the Series B Capital Securities Guarantee Agreement (the "Series B
Capital Securities Guarantee") for the benefit of the holders of the Series B
Capital Securities (as defined in the Declaration); it being understood that if
an Event of Default (as defined in the Declaration) has occurred and is
continuing, the rights of Holders of the Common Securities to receive Guarantee
Payments under this Common Securities Guarantee are subordinated, to the extent
and in the manner set forth herein, to the rights of holders of Capital
Securities (as defined in the Declaration) to receive Guarantee Payments under
the Series A Capital Securities Guarantee and the Series B Capital Securities
Guarantee, as the case may be.
NOW, THEREFORE, in consideration of the purchase by each
Holder of the Common Securities, which purchase the Guarantor hereby
acknowledges shall benefit the Guarantor, the Guarantor executes and delivers
this Common Securities Guarantee for the benefit of the Holders.
2
<PAGE>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation
------------------------------
In this Common Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Common Securities Guarantee
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) terms defined in the Declaration as at the date of
execution of this Common Securities Guarantee have the same meaning when used in
this Common Securities Guarantee unless otherwise defined in this Common
Securities Guarantee;
(c) a term defined anywhere in this Common Securities
Guarantee has the same meaning throughout;
(d) all references to "the Common Securities Guarantee" or
"this Common Securities Guarantee" are references to this Common Securities
Guarantee as modified, supplemented or amended from time to time;
(e) all references in this Common Securities Guarantee to
Articles and Sections are references to Articles and Sections of this Common
Securities Guarantee unless otherwise specified; and
(f) a term defined in the Trust Indenture Act has the same
meaning as in the Trust Indenture Act unless otherwise defined in this Common
Securities Guarantee; and
(g) a reference to the singular includes the plural and vice
versa.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Common Securities, to
the extent not paid or made by or on behalf of the Issuer: (i) any accumulated
and unpaid Distributions (as defined in the Declaration) that are required to be
paid on such Common Securities, to the extent the Issuer has funds 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 legally available therefor at such
time, with respect to any Common Securities called for redemption, and (iii)
upon a voluntary or involuntary dissolution, winding-up or liquidation of the
Issuer (other than in connection with the distribution of Debentures (as defined
in the Declaration) to the Holders in exchange for Common Securities or in
connection with the redemption of the Common Securities, in each case as
provided in the Declaration), the lesser of (a) the aggregate of the liquidation
amount and all accumulated and unpaid Distributions on the Common Securities to
the date of payment, to the extent the Issuer has funds legally available
therefor at such time, and (b) the amount of assets of the Issuer remaining
available for distribution to the Holders after satisfaction of liabilities to
creditors of the Issuer as required by applicable law (in either case, the
"Liquidation Distribution"). If an Event of Default under the Declaration, the
Series A Capital Securities Guarantee Agreement
3
<PAGE>
or the Series B Capital Securities Guarantee Agreement has occurred and is
continuing, no Guarantee Payments with respect to the Common Securities shall be
made until holders of Capital Securities shall be paid in full the Guarantee
Payments to which they are entitled under the Series A Capital Securities
Guarantee and the Series B Capital Securities Guarantee, as the case may be.
"Holder" means any holder, as registered on the books and
records of the Issuer, of any Common Securities.
"Other Guarantees" means all guarantees, other than this
Common Securities Guarantee, to be issued by the Guarantor with respect to
common securities (if any) similar to the Common Securities issued by trusts
other than the Issuer to be established by the Guarantor (if any), in each case
similar to the Issuer.
ARTICLE II
GUARANTEE
SECTION 2.1. Guarantee
---------
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
SECTION 2.2. Waiver of Notice and Demand
---------------------------
The Guarantor hereby waives notice of acceptance of this
Common 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 2.3. Obligations Not Affected
------------------------
The obligations, covenants, agreements and duties of the
Guarantor under this Common 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 Common 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 Common Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Common Securities;
4
<PAGE>
(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 Common
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 Common
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor;
it being the intent of this Section 2.3 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 2.4. Rights of Holders
-----------------
The Guarantor expressly acknowledges that any Holder of the
Common Securities may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Common Securities Guarantee, without
first instituting a legal proceeding against the Issuer or any other Person.
SECTION 2.5. Guarantee of Payment
--------------------
This Common Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 2.6. Subrogation
-----------
The Guarantor shall be subrogated to all (if any) rights of
the Holders of the Common Securities against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Common 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
rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Common Securities Guarantee, if, at the time of any such payment, any amounts
are due and unpaid under this Common Securities Guarantee. If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
5
<PAGE>
SECTION 2.7. Independent Obligations
-----------------------
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Common
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Common
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 2.3 hereof.
ARTICLE III
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 3.1. Limitation of Transactions
--------------------------
So long as any Common Securities remain outstanding, the
Guarantor will not (i) declare or pay any dividends or distribution on, or
redeem, purchase, acquire or make a liquidation payment with respect to any of
the Guarantor's capital stock, (ii) make any payment of principal of, or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Guarantor (including Other Debentures, as defined in the
Indenture) 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
the Guarantor of the debt securities of any subsidiary of the Guarantor
(including Other Guarantees, as defined in the Indenture) if such guarantee
ranks pari passu with or junior in right of payment to the Debentures (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 Guarantor, (b) any
declaration of a dividend in connection with the implementation of a
shareholders' 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 Series A Capital Securities Guarantee and the Series B
Capital Securities Guarantee, (d) as a result of 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 or compensation plans for its directors,
officers or employees or any of the Guarantor's dividend reinvestment plans) if
at such time (1) 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 and (B) in respect of which the Guarantor
shall not have taken reasonable steps to cure, (2) if such Debentures are held
by the Property Trustee, the Guarantor shall be in default with respect to its
payment of any obligations under the Series A Capital Securities Guarantee or
the Series B Capital Securities Guarantee or (3) the Guarantor shall have given
notice of its election of the exercise of its right to commence an Extended
Interest Payment Period as provided in the Indenture and shall not have
rescinded such notice, and such Extended Interest Payment Period, or an
extension thereof, shall have commenced and be continuing.
6
<PAGE>
SECTION 3.2. Ranking
-------
This Common Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to the Senior Indebtedness (as defined in the Indenture), to the same
extent and in the same manner that the Debentures are subordinated to the 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 Common Securities Guarantee as if such Article XV were set forth
herein in full, (ii) pari passu with the most senior preferred or preference
stock now or hereafter issued by the Guarantor and with any Other Guarantee and,
except as set forth herein or therein, the Series A Capital Securities
Guarantee, the Series B Capital 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.
ARTICLE IV
TERMINATION
SECTION 4.1. Termination
-----------
This Common Securities Guarantee shall terminate and be of no
further force or effect upon (i) full payment of the Redemption Price of all
Common Securities, (ii) the dissolution, winding-up or liquidation of the
Issuer, immediately following the full payment of the amounts payable in
accordance with the Declaration or (iii) the distribution of all of the
Debentures to the Holders of the Trust Securities (as defined in the
Declaration). Notwithstanding the foregoing, this Common Securities Guarantee
will continue to be effective or will be reinstated, as the case may be, if at
any time any Holder of the Common Securities must restore payment of any sums
paid under the Common Securities or under this Common Securities Guarantee.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Successors and Assigns
----------------------
All guarantees and agreements contained in this Common
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Common Securities then outstanding.
SECTION 5.2. Amendments
----------
Except with respect to any changes which do not adversely
affect in any material respect the rights of the Holders (in which case no
consent of the Holders will be required), this Common Securities Guarantee may
only be amended with the prior approval of the Holders of a majority in
liquidation amount of all the outstanding Common Securities. The provisions of
Section 12.2 of the Declaration with respect to meetings of Holders of the Trust
Securities apply to the giving of such approval.
7
<PAGE>
SECTION 5.3. Notices
-------
All notices provided for in this Common Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Issuer, in care of the Administrative
Trustee at the Issuer's mailing address set forth below (or such other address
as the Issuer may give notice of to the Holders of the Common Securities):
ASTORIA CAPITAL TRUST I
c/o Astoria Financial Corporation
One Astoria Federal Plaza
Lake Success, New York 11042
Attention: Monte N. Redman
Telephone: (516) 327-7892
Telecopier: (516) 327-7860
(b) 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 Common Securities):
Astoria Financial Corporation
One Astoria Federal Plaza
Lake Success, New York 11042
Attention: Alan P. Eggleston, Esq.
Telephone: (516) 327-7876
Telecopier: (516) 327-7860
(c) if given to any Holder of the Common 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 5.4. Benefit
-------
This Common Securities Guarantee is solely for the benefit of
the Holders of the Common Securities and is not separately transferrable from
the Common Securities.
SECTION 5.5. Governing Law
-------------
THIS COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THEREOF.
8
<PAGE>
This Common Securities Guarantee is executed as of the day and
year first above written.
ASTORIA FINANCIAL CORPORATION
By: /s/ George L. Engelke, Jr.
--------------------------
George L. Engelke, Jr.
Chairman of the Board,
President and Chief Executive Officer
9
<PAGE>
EXHIBIT 4.9
================================================================================
SERIES A CAPITAL SECURITIES GUARANTEE AGREEMENT
ASTORIA FINANCIAL CORPORATION
Dated as of October 28, 1999
================================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
-----------------
ARTICLE I
DEFINITIONS AND INTERPRETATION
Page
<S> <C>
SECTION 1.1 Definitions and Interpretation..................................................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application................................................................5
SECTION 2.2 Lists of Holders of Securities..................................................................5
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee.............................................6
SECTION 2.4 Periodic Reports................................................................................6
SECTION 2.5 Evidence of Compliance with Conditions Precedent................................................6
SECTION 2.6 Waiver of Events of Default.....................................................................6
SECTION 2.7 Notice of Events of Default.....................................................................6
SECTION 2.8 Conflicting Interests...........................................................................7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities Guarantee Trustee ..................................7
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee..........................................9
SECTION 3.3 Not Responsible for Recitals or Issuance of Series
A Capital Securities Guarantee.................................................................10
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility..............................................11
SECTION 4.2 Appointment, Removal and Resignation of Capital Securities
Guarantee Trustee..............................................................................11
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee......................................................................................12
SECTION 5.2 Waiver of Notice and Demand....................................................................12
SECTION 5.3 Obligations Not Affected.......................................................................12
SECTION 5.4 Rights of Holders..............................................................................13
</TABLE>
(i)
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 5.5 Guarantee of Payment...........................................................................14
SECTION 5.6 Subrogation....................................................................................14
SECTION 5.7 Independent Obligations........................................................................14
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.....................................................................14
SECTION 6.2 Ranking........................................................................................15
ARTICLE VII
TERMINATION
SECTION 7.1 Termination....................................................................................15
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation....................................................................................16
SECTION 8.2 Compensation and Indemnification...............................................................16
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.........................................................................17
SECTION 9.2 Amendments.....................................................................................17
SECTION 9.3 Notices........................................................................................17
SECTION 9.4 Exchange Offer.................................................................................18
SECTION 9.5 Benefit........................................................................................18
SECTION 9.6 Governing Law..................................................................................19
</TABLE>
(ii)
<PAGE>
CROSS REFERENCE TABLE
<TABLE>
<CAPTION>
Section of Trust
Indenture Act of Section of Guarantee
1939, as amended Agreement
- ---------------- ---------
<S> <C>
310(a) ....................................................................... 4.1(a)
310(b) ....................................................................... 2.8, 4.1(c)
310(c) ....................................................................... N/A
311(a) ....................................................................... 2.2(b)
311(b) ....................................................................... 2.2(b)
311 (c) ....................................................................... N/A
312(a) ....................................................................... 2.2(a)
312(b) ....................................................................... 2.2(b)
312(c) ....................................................................... N/A
313 ....................................................................... 2.3
314(a) ....................................................................... 2.4
314(b) ....................................................................... N/A
314(c) ....................................................................... 2.5
314(d) ....................................................................... N/A
314(e) ....................................................................... 1.1, 2.5, 3.2
314(f) ....................................................................... 2.1, 3.2
315(a) ....................................................................... 3.1(d), 3.2(a)
315(b) ....................................................................... 2.7
315(c) ....................................................................... 3.1(c)
315(d) ....................................................................... 3.1(d), 3.2(a), 8.1
315(e) ....................................................................... N/A
316(a) ....................................................................... 1.1, 2.6, 5.4
316(b) ....................................................................... 5.3, 5.4
316(c) ....................................................................... 9.2
317(a) ....................................................................... N/A
317(b) ....................................................................... N/A
318(a) ....................................................................... 2.1(a)
318(b) ....................................................................... 2.1(b)
318(c) ....................................................................... 2.1(b)
</TABLE>
- -------------------------
* This Cross-Reference Table does not constitute part of this Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
(iii)
<PAGE>
SERIES A CAPITAL SECURITIES GUARANTEE AGREEMENT
This SERIES A CAPITAL SECURITIES GUARANTEE AGREEMENT (the "Series A Capital
Securities Guarantee"), dated as of October 28, 1999, is executed and delivered
by ASTORIA FINANCIAL CORPORATION, a Delaware corporation (the "Guarantor"), and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as trustee (the
"Capital Securities Guarantee Trustee" or "Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Series A Capital Securities
(as defined herein) of ASTORIA CAPITAL TRUST I, a Delaware statutory business
trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of October 28, 1999, by and among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the Holders from time to
time of undivided beneficial interests in the assets of the Issuer, the Issuer
(i) is issuing on the date hereof 125,000 capital securities, having an
aggregate liquidation amount of $125,000,000, such capital securities being
designated the 9.75% Capital Securities, Series A (collectively the "Series A
Capital Securities") and (ii) in connection with an Exchange Offer (as defined
in the Declaration), will execute and deliver the Series B Capital Securities
Guarantee (as defined in the Declaration) for the benefit of Holders of the
Series B Capital Securities (as defined in the Declaration).
WHEREAS, as incentive for the Holders to purchase the Series A Capital
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Series A Capital Securities Guarantee, to pay the
Guarantee Payments (as defined herein) to the Holders of the Series A Capital
Securities, and the Guarantor agrees to make certain other payments on the terms
and conditions set forth herein.
WHEREAS, the Guarantor is also executing and delivering the Common
Securities Guarantee Agreement, dated as of October 28, 1999 (the "Common
Securities Guarantee"), for the benefit of the holders of the Common Securities
(as defined herein), the terms of which provide that if an Event of Default (as
defined in the Declaration) 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 Series A Capital
Securities and the Series B Capital Securities to receive Guarantee Payments
under this Series A Capital Securities Guarantee and the Series B Capital
Securities Guarantee, as the case may be.
NOW, THEREFORE, in consideration of the purchase by each Holder of the
Series A Capital Securities, which purchase the Guarantor hereby acknowledges
shall benefit the Guarantor, the Guarantor executes and delivers this Series A
Capital Securities Guarantee for the benefit of such Holders.
<PAGE>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
------------------------------
In this Series A Capital Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Series A Capital Securities Guarantee
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) terms defined in the Declaration as in effect at the date of execution
of this Series A Capital Securities Guarantee have the same meaning when used in
this Series A Capital Securities Guarantee unless otherwise defined in this
Series A Capital Securities Guarantee,
(c) a term defined anywhere in this Series A Capital Securities Guarantee
has the same meaning throughout;
(d) all references to "the Series A Capital Securities Guarantee" or "this
Series A Capital Securities Guarantee" are references to this Series A Capital
Securities Guarantee as modified, supplemented or amended from time to time;
(e) all references in this Series A Capital Securities Guarantee to
Articles and Sections are references to Articles and Sections of this Series A
Capital Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning when
used in this Series A Capital Securities Guarantee, unless otherwise defined in
this Series A Capital Securities Guarantee or unless the context otherwise
requires; and
(g) 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" shall mean any day other than a Saturday, a Sunday or a day
------------
on which banking institutions in New York, New York or Wilmington, Delaware are
authorized or required by law or executive order to remain closed.
"Capital Securities Guarantee Trustee" shall mean Wilmington Trust Company,
------------------------------------
as Trustee under the Series A Capital Securities Guarantee, until a Successor
Capital Securities Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Series A Capital Securities Guarantee
and thereafter means each such Successor Capital Securities Guarantee Trustee.
"Common Securities" shall mean the securities representing common undivided
-----------------
beneficial interests in the assets of the Issuer.
-2-
<PAGE>
"Corporate Trust Office" shall mean 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 Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-
0001, Attention: Corporate Trust Administration.
"Covered Person" shall mean any Holder or beneficial owner of Series A
--------------
Capital Securities.
"Debentures" shall mean the series of subordinated debt securities of the
----------
Guarantor designated the 9.75% Junior Subordinated Deferrable Interest
Debentures due November 1, 2029 Series A, held by the Property Trustee (as
defined in the Declaration) of the Issuer.
"Event of Default" shall mean a default by the Guarantor on any of its
----------------
payment or other obligations under this Series A Capital Securities Guarantee;
provided, however, that, except with respect to default in respect of any
- -------- -------
Guarantee Payment, no default by the Guarantor hereunder shall constitute an
Event of Default unless the Guarantor shall have received written notice of the
default and shall not have cured such default within 60 days after receipt
thereof.
"Guarantee Payments" shall mean the following payments or distributions,
------------------
without duplication, with respect to the Series A Capital Securities, to the
extent not paid or made by or on behalf of the Issuer: (i) any accumulated and
unpaid Distributions (as defined in the Declaration) that are required to be
paid on such Series A Capital Securities, to the extent the Issuer has funds
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 legally available
therefor at such time, with respect to any Series A Capital Securities called
for redemption, and (iii) upon a voluntary or involuntary dissolution, winding
up or liquidation of the Issuer (other than in connection with the distribution
of Debentures to the Holders in exchange for Series A Capital Securities or in
connection with the redemption of the Series A Capital Securities, in each case
as provided in the Declaration), the lesser of (a) the aggregate of the
liquidation amount and all accumulated and unpaid Distributions on the Series A
Capital Securities to the date of payment, to the extent the Issuer has funds
legally available therefor at such time, and (b) the amount of assets of the
Issuer remaining available for distribution to Holders after satisfaction of
liabilities to creditors of the Issuer as required by applicable law (in either
case, the "Liquidation Distribution"). 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 the Common
Securities Guarantee or any Other Common Securities Guarantee shall be made
until the Holders of the Series A Capital Securities shall be paid in full the
Guarantee Payments to which they are entitled under this Series A Capital
Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and records of
------
the Issuer, of any Series A Capital Securities; provided, however, that, in
-------- -------
determining whether the holders of the requisite percentage of Series A Capital
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Person actually known to a Responsible
Officer of the Capital Securities Guarantee Trustee to be an Affiliate of the
Guarantor.
"Indemnified Person" shall mean the Capital Securities Guarantee Trustee
------------------
(including in its individual capacity), 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.
-3-
<PAGE>
"Indenture" shall mean the Indenture, dated as of October 28, 1999, between
---------
Astoria Financial Corporation, as issuer of Debentures (the "Debenture Issuer"),
and Wilmington Trust Company, as trustee, pursuant to which the Debentures are
to be issued to the Property Trustee of the Issuer.
"Majority in Liquidation Amount of the Series A Capital Securities" shall
-----------------------------------------------------------------
mean, except as provided by the Trust Indenture Act, a vote by Holder(s) of the
Series A Capital Securities, voting separately as a class, of more than 50% of
the aggregate liquidation amount (including the 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 outstanding
Series A Capital Securities, excluding Series A Capital Securities held by the
Guarantor and the Issuer and any Affiliate thereof.
"Officers' Certificate" shall mean, with respect to any Person, a
---------------------
certificate signed by the Chairman, the Chief Executive Officer, the President,
an Executive or Senior Vice President, a Vice President, the Chief Financial
Officer and the Secretary or an Assistant Secretary. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Series A Capital Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenants or conditions and the definitions relating thereto;
(b) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(c) a statement as to whether or not, in the opinion of each 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" shall mean all junior subordinated debentures, other
----------------
than the Debentures and the Series B Debentures (as defined in the Indenture),
issued by the Guarantor, from time to time and sold to trusts other than the
Issuer to be established by the Guarantor (if any), in each case similar to the
Issuer.
"Other Guarantees" shall mean all guarantees, other than this Series A
----------------
Capital Securities Guarantee and the Series B Capital Securities Guarantee, to
be issued by the Guarantor with respect to capital securities (if any) similar
to the Series A Capital Securities, issued by trusts other than the Issuer to be
established by the Guarantor (if any), in each case similar to the Issuer.
"Person" shall mean 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.
-4-
<PAGE>
"Registration Rights Agreement" shall mean the Registration Rights
-----------------------------
Agreement, dated as of October 25, 1999, by and among the Guarantor, the Issuer
and the Initial Purchaser named therein, as such agreement may be amended,
modified or supplemented from time to time.
"Responsible Officer" shall mean, with respect to a Person, any officer
-------------------
with direct responsibility for the administration of any matters relating to
this Series A Capital Securities Guarantee.
"Successor Capital Securities Guarantee Trustee" shall mean a successor
----------------------------------------------
Capital Securities Guarantee Trustee possessing the qualifications to act as
Capital Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
-------------------
amended.
"Trust Securities" shall mean the Common Securities and the Series A
----------------
Capital Securities and Series B Capital Securities, collectively.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
--------------------------------
(a) This Series A Capital Securities Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Series A Capital
Securities Guarantee and shall, to the extent applicable, be governed by such
provisions.
(b) If and to the extent that any provision of this Series A 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. If any provision of this Series A Capital Securities Guarantee
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the modified or excluded provision of the Trust Indenture
Act shall be deemed to apply to this Series A Capital Securities Guarantee as so
modified or excluded, as the case may be.
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 Series A 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 of the Series A Capital Securities ("List of Holders") as of such
date, (i) within fourteen (14) days after each record date for payment of
Distributions (as defined in the Declaration), 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 upon
receipt of a new List of Holders.
-5-
<PAGE>
(b) The Capital Securities Guarantee Trustee shall comply with its
obligations under Sections 31l(a), 31l(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee
---------------------------------------------------
Within 60 days after the date hereof, and no later than the anniversary
date hereof in each succeeding year, the Capital Securities Guarantee Trustee
shall provide to the Holders of the Series A Capital Securities such reports as
are required by Section 313 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 requirements of Section
313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports
----------------
The Guarantor shall provide to the Capital Securities Guarantee Trustee
such documents, reports and information as are 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 of the
Trust Indenture Act. 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 Officers' 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 the conditions precedent, if any, provided for
in this Series A 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 Officers' Certificate.
SECTION 2.6 Waiver of Events of Default
---------------------------
The Holders of a Majority in Liquidation Amount of the Series A Capital
Securities may, by vote, on behalf of the Holders of all of the Series A Capital
Securities, 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
Series A 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 Notice of Events of Default
---------------------------
(a) The Capital Securities Guarantee Trustee shall, within 10 Business Days
after the occurrence of an Event of Default with respect to this Series A
Capital Securities Guarantee actually known to a Responsible Officer of the
Capital Securities Guarantee Trustee, transmit by mail, first class postage
prepaid, to all Holders of the Series A Capital Securities, notices of all such
Events of Default, unless such Events of Default have been cured before the
giving of such notice; provided, however,
-------- -------
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<PAGE>
that, except in the case of an Event of Default arising from the non-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 of the Series A
Capital Securities.
(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, 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 Series
A 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 Series A Capital Securities Guarantee shall be held by the Capital
Securities Guarantee Trustee for the benefit of the Holders of the Series A
Capital Securities, and the Capital Securities Guarantee Trustee shall not
transfer this Series A Capital Securities Guarantee to any Person except a
Holder of the Series A Capital Securities exercising his or her 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 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 Series A Capital Securities
Guarantee for the benefit of the Holders of the Series A Capital Securities.
(c) The Capital Securities Guarantee Trustee, before the occurrence of any
Event of Default (of which, other than a default in respect of any Guarantee
Payment, a Responsible Officer of the Property Trustee has actual knowledge) and
after the curing of all such Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Series A Capital Securities Guarantee, and no implied covenants or obligations
shall be read into this Series A 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) and is actually
known to a Responsible Officer of the Capital Securities Guarantee Trustee, the
Capital Securities Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Series
-7-
<PAGE>
A 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 Series A 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:
(i) prior to the occurrence of any Event of Default (of which, other
than a default in respect of any Guarantee Payment, a Responsible Officer
of the Property Trustee has actual knowledge) and after the curing or
waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Capital Securities Guarantee
Trustee shall be determined solely by the express provisions of this Series
A 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 Series A Capital
Securities Guarantee, and no implied covenants or obligations shall be read
into this Series A Capital Securities Guarantee against the Capital
Securities Guarantee Trustee; and
(B) 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 Series A 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 on
their face they conform to the requirements of this Series A Capital
Securities Guarantee;
(ii) the Capital Securities Guarantee Trustee shall not be liable for
any errors 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 or such Responsible Officer was
negligent in ascertaining the pertinent facts upon which such judgment was
made;
(iii) the Capital Securities Guarantee Trustee shall not be liable
with respect to any actions 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 Series A 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 Series A
Capital Securities Guarantee; and
(iv) no provision of this Series A 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 Series A Capital Securities Guarantee
or indemnity, reasonably
-8-
<PAGE>
satisfactory to the Capital Securities Guarantee Trustee, against such risk
or liability is not reasonably assured to it.
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
Series A Capital Securities Guarantee may be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever, in the administration of this Series A 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)
may, in the absence of bad faith on its part, request and conclusively rely
upon an Officers' Certificate, which, upon receipt of such request, shall
be promptly delivered by the Guarantor;
(iv) the Capital Securities Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument or other
document (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; and the Capital Securities Guarantee Trustee
shall have the right at any time to seek instructions concerning the
administration of this Series A Capital Securities Guarantee from any court
of competent jurisdiction;
(vii) the Capital Securities Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Series A 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 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, however, 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
Series A Capital Securities Guarantee;
-9-
<PAGE>
(vii) the Capital Securities Guarantee Trustee shall have no
obligation 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 such person 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 of the Series A Capital
Securities, and the signature of the Capital Securities Guarantee 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 Capital Securities Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Series A 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 Series A 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 Series A 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 Series
A Capital Securities Guarantee.
(b) No provision of this Series A 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 Series
--------------------------------------------------
A Capital Securities Guarantee
------------------------------
The recitals contained in this Series A 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 the validity
or sufficiency of this Series A Capital Securities Guarantee.
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<PAGE>
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 that
shall
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation or other Person 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 by the Securities and Exchange Commission to act as an indenture
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of
at least fifty million U.S. dollars ($50,000,000), and subject to
supervision or examination by federal, state, territorial or District of
Columbia authority; it being understood that if such corporation or other
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 4.1(a)(ii) and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the 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.
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,
subject to Section 4.1, 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
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<PAGE>
Successor Capital Securities Guarantee Trustee has been appointed, subject to
Section 4.1, 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 Series A 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
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 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 Series A 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 Series A 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:
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<PAGE>
(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 Series A 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 Series A Capital Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Series A Capital Securities;
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Series A 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 Series A Capital
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred;
(g) the consummation of the Exchange Offer (subject to Section 7.1 hereof);
or
(h) 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 Series A 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 Series A Capital Securities Guarantee or exercising any trust
or power conferred upon the Capital Securities Guarantee Trustee under this
Series A Capital Securities Guarantee.
(b) If the Capital Securities Guarantee Trustee fails to enforce this
Series A Capital Securities Guarantee, any Holder of the Series A Capital
Securities may institute a legal proceeding directly against the Guarantor to
enforce the Capital Securities Guarantee Trustee's rights under this Series A
Capital Securities Guarantee, without first instituting a legal proceeding
against the Issuer, the Capital Securities Guarantee Trustee or any other person
or entity. The Guarantor waives any right or remedy to require that any action
be brought first against the Issuer or any other person or entity before
proceeding directly against the Guarantor.
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<PAGE>
SECTION 5.5 Guarantee of Payment
--------------------
This Series A Capital Securities Guarantee creates a guarantee of payment
and not of collection.
SECTION 5.6 Subrogation
-----------
The Guarantor shall be subrogated to all (if any) rights of the Holders of
Series A Capital Securities against the Issuer in respect of any amounts paid to
such Holders by the Guarantor under this Series A 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 Series A Capital
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Series A Capital Securities Guarantee. If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.7 Independent Obligations
-----------------------
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Series A 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 Series A
Capital Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (h), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
--------------------------
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, (ii) make any payment of principal of, or interest or premium, if
any, on or repay, repurchase or redeem any debt securities of the Guarantor
(including 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 the Guarantor of the debt securities of any subsidiary of the
Guarantor (including Other Guarantees) if such guarantee ranks pari passu with
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 shareholders' 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 this Series A
Capital Securities Guarantee and the Series B Capital Securities Guarantee, (d)
as a result of 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
-14-
<PAGE>
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 or compensation plans for its directors,
officers or employees or any of the Guarantor's dividend reinvestment plans) if
at such time (l) there shall have occurred any event of which the Guarantor has
actual knowledge that (A) is a Default or Event of Default (each as defined in
the Indenture) and (B) in respect of which the Guarantor shall not have taken
reasonable steps to cure, (2) if the Debentures are held by the Property
Trustee, the Guarantor shall be in default with respect to its payment of any
obligations under this Series A Capital Securities Guarantee or (3) the
Guarantor shall have given notice of its election of the exercise of its right
to commence an Extended Interest Payment Period as provided in the Indenture and
shall not have rescinded such notice, and such Extended Interest Payment Period,
or an extension thereof, shall have commenced and be continuing.
SECTION 6.2 Ranking
-------
This Series A 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 Series A Capital Securities Guarantee as if such Article XV were set
forth herein in full, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and with the Series B
Capital Securities Guarantee, any Other Guarantee and, except to the extent set
forth therein, the Common Securities Guarantee, 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.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
-----------
This Series A Capital Securities Guarantee shall terminate and be of no
further force and effect upon (i) full payment of the Redemption Price of all
Series A Capital Securities, (ii) the exchange of all Series A Capital
Securities for Series B Capital Securities pursuant to the Exchange Offer, (iii)
dissolution, winding up or liquidation of the Issuer, immediately following the
full payment of the amounts payable in accordance with the Declaration or (iv)
the distribution of all of the Debentures to the Holders of the Trust
Securities. Notwithstanding the foregoing, this Series A Capital Securities
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder of the Series A Capital Securities must restore
payment of any sums paid under the Series A Capital Securities or under this
Series A Capital Securities Guarantee.
-15-
<PAGE>
ARTICLE VII
INDEMNIFICATION
SECTION 8.1 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 Series A 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 Series A 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 and who has been selected with reasonable care
by or on behalf of the Guarantor, 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 Series A Capital Securities might properly be
paid.
SECTION 8.2 Compensation and Indemnification
--------------------------------
The Guarantor agrees to pay to the Capital Securities Guarantee Trustee
such compensation for its services as shall be mutually agreed upon by the
Guarantor and the Capital Securities Guarantee Trustee. The Guarantor shall
reimburse the Capital Securities Guarantee Trustee upon request for all
reasonable out-of-pocket expenses incurred by it, including the reasonable
compensation and expenses of the Capital Securities Guarantee Trustee's agents
and counsel, except any expense as may be attributable to the negligence or bad
faith of the Capital Securities Guarantee Trustee.
The Guarantor agrees to indemnify each Indemnified Person for, and to hold
each Indemnified Person harmless against, any and all loss, liability, damage,
action, suit, 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 provisions of this
Section 8.2 shall survive the termination of this Series A Capital Securities
Guarantee and shall survive the resignation or removal of the Capital Securities
Guarantee Trustee.
-16-
<PAGE>
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
----------------------
All guarantees and agreements contained in this Series A Capital Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Series A Capital Securities then outstanding.
SECTION 9.2 Amendments
----------
Except with respect to any changes that do not materially adversely affect
the rights of Holders of the Series A Capital Securities (in which case no
consent of such Holders will be required), this Series A Capital Securities
Guarantee may only be amended with the prior approval of the Holders of a
Majority in Liquidation Amount of the Series A Capital Securities. The
provisions of Section 12.2 of the Declaration with respect to meetings of
Holders of the Trust Securities apply to the giving of such approval. This
Series A Capital Securities Guarantee may not be amended, and no amendment
hereof that affects the Capital Securities Guarantee Trustee's rights, duties or
immunities hereunder or otherwise, shall be effective, unless such amendment is
executed by the Capital Securities Guarantee Trustee (which shall have no
obligation to execute any such amendment, but may do so in its sole discretion).
SECTION 9.3 Notices
-------
All notices provided for in this Series A 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 Administrative Trustee at the
Issuer's mailing address set forth below (or such other address as the Issuer
may give notice of to the Capital Securities Guarantee Trustee and the Holders
of the Series A Capital Securities):
ASTORIA CAPITAL TRUST I
c/o Astoria Financial Corporation
One Astoria Federal Plaza
Lake Success, New York 11042
Attention: Monte N. Redman
Telephone: (516) 327-7892
Telecopier: (516) 327-7860
-17-
<PAGE>
(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 the Capital Securities Guarantee Trustee may give notice of to the
Holders of the Series A Capital Securities):
WILMINGTON TRUST COMPANY
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Telephone: (302) 651-1000
Telecopier: (302) 651-8882
(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 Capital
Securities Guarantee Trustee and the Holders of the Series A Capital
Securities):
ASTORIA FINANCIAL CORPORATION
One Astoria Federal Plaza
Lake Success, New York 11042
Attention: Alan P. Eggleston, Esq.
Telephone: (516) 327-7876
Telecopier: (516) 327-7860
(d) If given to any Holder of the Series A 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 9.4 Exchange Offer
--------------
In the event an Exchange Offer Registration Statement (as defined in the
Registration Rights Agreement) becomes effective and the Issuer exchanges any
Series B Capital Securities for Series A Capital Securities in the Exchange
Offer, the Guarantor will enter into the Series B Capital Securities Guarantee,
which will be in substantially the same form as this Series A Capital Securities
Guarantee, with respect to the Series B Capital Securities. Each Holder, by its
acceptance hereof, agrees to be bound by the Registration Rights Agreement.
SECTION 9.5 Benefit
-------
This Series A Capital Securities Guarantee is solely for the benefit of the
Holders of the Series A Capital Securities and, subject to Section 3.1(a), is
not separately transferable from the Series A Capital Securities.
-18-
<PAGE>
SECTION 9.6 Governing Law
-------------
THIS SERIES A 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 CONFLICT OF LAW PRINCIPLES THEREOF.
This Series A Capital Securities Guarantee is executed as of the day and
year first above written.
ASTORIA FINANCIAL CORPORATION,
as Guarantor
By: /s/ George L. Engelke, Jr.
--------------------------
George L. Engelke, Jr.
Chairman of the Board,
President and Chief Executive Officer
WILMINGTON TRUST COMPANY,
as Capital Securities Guarantee Trustee
By: /s/ James P. Lawler
-------------------
James P. Lawler
Vice President
<PAGE>
EXHIBIT 4.10
=================================================
SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT
ASTORIA FINANCIAL CORPORATION
Dated as of February 18, 2000
=================================================
<PAGE>
TABLE OF CONTENTS
-----------------
Page
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation...................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.................................5
SECTION 2.2 Lists of Holders of Securities...................................5
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee..............6
SECTION 2.4 Periodic Reports.................................................6
SECTION 2.5 Evidence of Compliance with Conditions Precedent.................6
SECTION 2.6 Waiver of Events of Default......................................6
SECTION 2.7 Notice of Events of Default......................................6
SECTION 2.8 Conflicting Interests............................................7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities Guarantee Trustee ...7
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee...........9
SECTION 3.3 Not Responsible for Recitals or Issuance of Series
B Capital Securities Guarantee..................................10
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility...............11
SECTION 4.2 Appointment, Removal and Resignation of Capital Securities
Guarantee Trustee...............................................11
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.......................................................12
SECTION 5.2 Waiver of Notice and Demand.....................................12
SECTION 5.3 Obligations Not Affected........................................12
SECTION 5.4 Rights of Holders...............................................13
(i)
<PAGE>
Page
----
SECTION 5.5 Guarantee of Payment............................................14
SECTION 5.6 Subrogation.....................................................14
SECTION 5.7 Independent Obligations.........................................14
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions......................................14
SECTION 6.2 Ranking.........................................................15
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.....................................................15
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation.....................................................16
SECTION 8.2 Compensation and Indemnification................................16
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns..........................................17
SECTION 9.2 Amendments......................................................17
SECTION 9.3 Notices.........................................................17
SECTION 9.4 Benefit.........................................................18
SECTION 9.5 Governing Law...................................................19
(ii)
<PAGE>
CROSS REFERENCE TABLE
Section of Trust
Indenture Act of Section of Guarantee
1939, as amended Agreement
- ---------------- ---------
310(a) .................................... 4.1(a)
310(b) .................................... 2.8, 4.1(c)
310(c) .................................... N/A
311(a) .................................... 2.2(b)
311(b) .................................... 2.2(b)
311(c) .................................... N/A
312(a) .................................... 2.2(a)
312(b) .................................... 2.2(b)
312(c) .................................... N/A
313 .................................... 2.3
314(a) .................................... 2.4
314(b) .................................... N/A
314(c) .................................... 2.5
314(d) .................................... N/A
314(e) .................................... 1.1, 2.5, 3.2
314(f) .................................... 2.1, 3.2
315(a) .................................... 3.1(d), 3.2(a)
315(b) .................................... 2.7
315(c) .................................... 3.1(c)
315(d) .................................... 3.1(d), 3.2(a), 8.1
315(e) .................................... N/A
316(a) .................................... 1.1, 2.6, 5.4
316(b) .................................... 5.3, 5.4
316(c) .................................... 9.2
317(a) .................................... N/A
317(b) .................................... N/A
318(a) .................................... 2.1(a)
318(b) .................................... 2.1(b)
318(c) .................................... 2.1(b)
- -------------------------
* This Cross-Reference Table does not constitute part of this Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
(iii)
<PAGE>
SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT
This SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT (the "Series B Capital
Securities Guarantee"), dated as of February 18, 2000, is executed and delivered
by ASTORIA FINANCIAL CORPORATION, a Delaware corporation (the "Guarantor"), and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as trustee (the
"Capital Securities Guarantee Trustee" or "Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Series B Capital Securities
(as defined herein) of ASTORIA CAPITAL TRUST I, a Delaware statutory business
trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of October 28, 1999, by and among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the Holders from time to
time of undivided beneficial interests in the assets of the Issuer, the Issuer
(i) issued on October 28, 1999 125,000 capital securities, having an aggregate
liquidation amount of $125,000,000, such capital securities being designated the
9.75% Capital Securities, Series A (collectively the "Series A Capital
Securities") and (ii) in connection with an Exchange Offer (as defined in the
Declaration), hereby executes and delivers this Series B Capital Securities
Guarantee (as defined in the Declaration) for the benefit of Holders of the
Series B Capital Securities (as defined in the Declaration).
WHEREAS, the Series A Capital Securities issued by the Issuer and proceeds
thereof, together with the proceeds from the issuance of the Issuer's Common
Securities (as defined herein), were used to purchase the Junior Subordinated
Debentures due November 1, 2029 (the "Series A Junior Subordinated Debentures")
of the Guarantor which were deposited with the Trustee, as Property Trustee
under the Declaration, as trust assets.
WHEREAS, as incentive for the Holders to purchase the Series A Capital
Securities, the Guarantor irrevocably and unconditionally agreed, to the extent
set forth in the Series A Capital Securities Guarantee dated as of October 28,
1999, to pay the Guarantee Payments (as defined herein) to the Holders of the
Series A Capital Securities, and the Guarantor agrees to make certain other
payments on the terms and conditions set forth herein.
WHEREAS, in connection with the offer of the Series A Capital Securities,
the Guarantor, the Issuer and Sandler O'Neill & Partners, L.P. executed the
Registration Rights Agreement dated October 25, 1999 (the "Registration Rights
Agreement").
WHEREAS, the Issuer, in order to satisfy its obligations under the
Registration Rights Agreement, intends to offer up to $125,000,000 aggregate
Liquidation Amount of its 9.75% Capital Securities, Series B, which have been
registered under the Securities Act of 1933, as amended, pursuant to a
registration statement in exchange for a like Liquidation Amount of Series A
Capital Securities.
WHEREAS, pursuant to the Exchange Offer, the Guarantor is also exchanging
up to $125,000,000 aggregate principal amount of the Series A Junior
Subordinated Debentures for up to $125,000,000 aggregate principal amount of the
Series B Junior Subordinated Debentures due November 1, 2029 of the Guarantor.
WHEREAS, pursuant to the Exchange Offer, the Guarantor is required to
execute this Series B Capital Securities Guarantee and exchange the Series A
Capital Securities Guarantee for this Series B Capital Securities Guarantee
Agreement.
<PAGE>
WHEREAS, the Guarantor also executed and delivered the Common Securities
Guarantee Agreement, dated as of October 28, 1999 (the "Common Securities
Guarantee"), for the benefit of the holders of the Common Securities (as defined
herein), the terms of which provide that if an Event of Default (as defined in
the Declaration) 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 the Series A Capital
Securities and the Series B Capital Securities to receive Guarantee Payments
under the Series A Capital Securities Guarantee and this Series B Capital
Securities Guarantee, as the case may be.
NOW, THEREFORE, in consideration of the exchange by each Holder of the
Series A Capital Securities for the Series B Capital Securities, which exchange
the Guarantor hereby acknowledges shall benefit the Guarantor, (or in the event
certain Holders do not exchange their Series A Capital Securities, in order to
fulfill its obligations to such Holders under the Series A Capital Securities
Guarantee) and intending to be legally bound hereby, the Guarantor executes and
delivers this Series B Capital Securities Guarantee for the benefit of the
Holders from time to time of the Trust Securities (as defined herein).
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
------------------------------
In this Series B Capital Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Series B Capital Securities Guarantee
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) terms defined in the Declaration as in effect at the date of execution
of this Series B Capital Securities Guarantee have the same meaning when used in
this Series B Capital Securities Guarantee unless otherwise defined in this
Series B Capital Securities Guarantee,
(c) a term defined anywhere in this Series B Capital Securities Guarantee
has the same meaning throughout;
(d) all references to "the Series B Capital Securities Guarantee" or "this
Series B Capital Securities Guarantee" are references to this Series B Capital
Securities Guarantee as modified, supplemented or amended from time to time;
(e) all references in this Series B Capital Securities Guarantee to
Articles and Sections are references to Articles and Sections of this Series B
Capital Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning when
used in this Series B Capital Securities Guarantee, unless otherwise defined in
this Series B Capital Securities Guarantee or unless the context otherwise
requires; and
-2-
<PAGE>
(g) 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" shall mean any day other than a Saturday, a Sunday or a day
------------
on which banking institutions in New York, New York or Wilmington, Delaware are
authorized or required by law or executive order to remain closed.
"Capital Securities Guarantee Trustee" shall mean Wilmington Trust Company,
------------------------------------
as Trustee under the Series B Capital Securities Guarantee, until a Successor
Capital Securities Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Series B Capital Securities Guarantee
and thereafter means each such Successor Capital Securities Guarantee Trustee.
"Common Securities" shall mean the securities representing common undivided
-----------------
beneficial interests in the assets of the Issuer.
"Corporate Trust Office" shall mean 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 Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-
0001, Attention: Corporate Trust Administration.
"Covered Person" shall mean any Holder or beneficial owner of Series B
--------------
Capital Securities.
"Debentures" shall mean the series of subordinated debt securities of the
----------
Guarantor designated the 9.75% Junior Subordinated Deferrable Interest
Debentures due November 1, 2029 Series B, held by the Property Trustee (as
defined in the Declaration) of the Issuer.
"Event of Default" shall mean a default by the Guarantor on any of its
----------------
payment or other obligations under this Series B Capital Securities Guarantee;
provided, however, that, except with respect to default in respect of any
Guarantee Payment, no default by the Guarantor hereunder shall constitute an
Event of Default unless the Guarantor shall have received written notice of the
default and shall not have cured such default within 60 days after receipt
thereof.
"Guarantee Payments" shall mean the following payments or distributions,
------------------
without duplication, with respect to the Series B Capital Securities, to the
extent not paid or made by or on behalf of the Issuer: (i) any accumulated and
unpaid Distributions (as defined in the Declaration) that are required to be
paid on such Series B Capital Securities, to the extent the Issuer has funds
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 legally available
therefor at such time, with respect to any Series B Capital Securities called
for redemption, and (iii) upon a voluntary or involuntary dissolution, winding
up or liquidation of the Issuer (other than in connection with the distribution
of Debentures to the Holders in exchange for Series B Capital Securities or in
connection with the redemption of the Series B Capital Securities, in each case
as provided in the Declaration), the lesser of (a) the aggregate of the
liquidation amount and all accumulated and unpaid Distributions on the Series B
Capital Securities to the date of
-3-
<PAGE>
payment, to the extent the Issuer has funds legally available therefor at such
time, and (b) the amount of assets of the Issuer remaining available for
distribution to Holders after satisfaction of liabilities to creditors of the
Issuer as required by applicable law (in either case, the "Liquidation
Distribution"). 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 the Common Securities Guarantee
or any Other Common Securities Guarantee shall be made until the Holders of the
Series B Capital Securities shall be paid in full the Guarantee Payments to
which they are entitled under this Series B Capital Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and records of
------
the Issuer, of any Series B Capital Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Series B Capital
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Person actually known to a Responsible
Officer of the Capital Securities Guarantee Trustee to be an Affiliate of the
Guarantor.
"Indemnified Person" shall mean the Capital Securities Guarantee Trustee
------------------
(including in its individual capacity), 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" shall mean the Indenture, dated as of October 28, 1999, between
---------
Astoria Financial Corporation, as issuer of Debentures (the "Debenture Issuer"),
and Wilmington Trust Company, as trustee, pursuant to which the Debentures are
to be issued to the Property Trustee of the Issuer.
"Majority in Liquidation Amount of the Series B Capital Securities" shall
-----------------------------------------------------------------
mean, except as provided by the Trust Indenture Act, a vote by Holder(s) of the
Series B Capital Securities, voting separately as a class, of more than 50% of
the aggregate liquidation amount (including the 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 outstanding
Series B Capital Securities, excluding Series B Capital Securities held by the
Guarantor and the Issuer and any Affiliate thereof.
"Officers' Certificate" shall mean, with respect to any Person, a
---------------------
certificate signed by the Chairman, the Chief Executive Officer, the President,
an Executive or Senior Vice President, a Vice President, the Chief Financial
Officer and the Secretary or an Assistant Secretary. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Series B Capital Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenants or conditions and the definitions relating thereto;
(b) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(c) a statement as to whether or not, in the opinion of each such officer,
such condition or covenant has been complied with.
-4-
<PAGE>
"Other Common Securities Guarantees" shall have the same meaning as "Other
----------------------------------
Guarantees" in the Common Securities Guarantee.
"Other Debentures" shall mean all junior subordinated debentures, other
----------------
than the Series A Junior Subordinated Debentures and the Debentures, issued by
the Guarantor, from time to time and sold to trusts other than the Issuer to be
established by the Guarantor (if any), in each case similar to the Issuer.
"Other Guarantees" shall mean all guarantees, other than this Series B
----------------
Capital Securities Guarantee and the Series A Capital Securities Guarantee, to
be issued by the Guarantor with respect to capital securities (if any) similar
to the Series B Capital Securities, issued by trusts other than the Issuer to be
established by the Guarantor (if any), in each case similar to the Issuer.
"Person" shall mean 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.
"Registration Rights Agreement" shall mean the Registration Rights
-----------------------------
Agreement, dated as of October 25, 1999, by and among the Guarantor, the Issuer
and the Initial Purchaser named therein, as such agreement may be amended,
modified or supplemented from time to time.
"Responsible Officer" shall mean, with respect to a Person, any officer
-------------------
with direct responsibility for the administration of any matters relating to
this Series B Capital Securities Guarantee.
"Successor Capital Securities Guarantee Trustee" shall mean a successor
----------------------------------------------
Capital Securities Guarantee Trustee possessing the qualifications to act as
Capital Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
-------------------
amended.
"Trust Securities" shall mean the Common Securities and the Series A
----------------
Capital Securities and Series B Capital Securities, collectively.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
--------------------------------
(a) This Series B Capital Securities Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Series B Capital
Securities Guarantee and shall, to the extent applicable, be governed by such
provisions.
(b) If and to the extent that any provision of this Series B 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. If any provision of this Series B Capital Securities
-5-
<PAGE>
Guarantee modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the modified or excluded provision of the Trust
Indenture Act shall be deemed to apply to this Series B Capital Securities
Guarantee as so modified or excluded, as the case may be.
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 Series B 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 of the Series B Capital Securities ("List of Holders") as of such
date, (i) within fourteen (14) days after each record date for payment of
Distributions (as defined in the Declaration), 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 upon
receipt of a new List of Holders.
(b) The Capital Securities Guarantee Trustee shall comply with its
obligations under Sections 31l(a), 31l(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee
---------------------------------------------------
Within 60 days after the date hereof, and no later than the anniversary
date hereof in each succeeding year, the Capital Securities Guarantee Trustee
shall provide to the Holders of the Series B Capital Securities such reports as
are required by Section 313 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 requirements of Section
313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports
----------------
The Guarantor shall provide to the Capital Securities Guarantee Trustee
such documents, reports and information as are 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 of the
Trust Indenture Act. 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 Officers' 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 the conditions precedent, if any, provided for
in this Series B 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 Officers' Certificate.
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SECTION 2.6 Waiver of Events of Default
---------------------------
The Holders of a Majority in Liquidation Amount of the Series B Capital
Securities may, by vote, on behalf of the Holders of all of the Series B Capital
Securities, 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
Series B 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 Notice of Events of Default
---------------------------
(a) The Capital Securities Guarantee Trustee shall, within 10 Business Days
after the occurrence of an Event of Default with respect to this Series B
Capital Securities Guarantee actually known to a Responsible Officer of the
Capital Securities Guarantee Trustee, transmit by mail, first class postage
prepaid, to all Holders of the Series B Capital Securities, notices of all such
Events of Default, unless such Events of Default have been cured before the
giving of such notice; provided, however, that, except in the case of an Event
of Default arising from the non-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 of the Series B Capital Securities.
(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, 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 Series
B 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 Series B Capital Securities Guarantee shall be held by the Capital
Securities Guarantee Trustee for the benefit of the Holders of the Series B
Capital Securities, and the Capital Securities Guarantee Trustee shall not
transfer this Series B Capital Securities Guarantee to any Person except a
Holder of the Series B Capital Securities exercising his or her 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
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succession of title shall be effective whether or not conveyancing documents
have been executed and delivered 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 Series B Capital Securities
Guarantee for the benefit of the Holders of the Series B Capital Securities.
(c) The Capital Securities Guarantee Trustee, before the occurrence of any
Event of Default (of which, other than a default in respect of any Guarantee
Payment, a Responsible Officer of the Property Trustee has actual knowledge) and
after the curing of all such Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Series B Capital Securities Guarantee, and no implied covenants or obligations
shall be read into this Series B 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) and is actually
known to a Responsible Officer of the Capital Securities Guarantee Trustee, the
Capital Securities Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Series B 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 Series B 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:
(i) prior to the occurrence of any Event of Default (of which, other
than a default in respect of any Guarantee Payment, a Responsible Officer
of the Property Trustee has actual knowledge) and after the curing or
waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Capital Securities Guarantee
Trustee shall be determined solely by the express provisions of this Series
B 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 Series B Capital
Securities Guarantee, and no implied covenants or obligations shall be read
into this Series B Capital Securities Guarantee against the Capital
Securities Guarantee Trustee; and
(B) 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 Series B 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 on
their face they conform to the requirements of this Series B Capital
Securities Guarantee;
(ii) the Capital Securities Guarantee Trustee shall not be liable for
any errors 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 or such
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<PAGE>
Responsible Officer was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Capital Securities Guarantee Trustee shall not be liable
with respect to any actions 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 Series B 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 Series B
Capital Securities Guarantee; and
(iv) no provision of this Series B 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 Series B Capital Securities Guarantee
or indemnity, reasonably satisfactory to the Capital Securities Guarantee
Trustee, against such risk or liability is not reasonably assured to it.
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 Series
B Capital Securities Guarantee may be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever, in the administration of this Series B 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)
may, in the absence of bad faith on its part, request and conclusively rely
upon an Officers' Certificate, which, upon receipt of such request, shall
be promptly delivered by the Guarantor;
(iv) the Capital Securities Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument or other
document (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; and the Capital Securities Guarantee Trustee shall have the
right at any time to
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seek instructions concerning the administration of this Series B Capital
Securities Guarantee from any court of competent jurisdiction;
(vi) the Capital Securities Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Series B 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 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, however, 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
Series B Capital Securities Guarantee;
(vii) the Capital Securities Guarantee Trustee shall have no
obligation 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 such person 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 of the Series B Capital
Securities, and the signature of the Capital Securities Guarantee 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 Capital Securities Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Series B 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 Series B 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 Series B 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 Series
B Capital Securities Guarantee.
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(b) No provision of this Series B 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 Series B
----------------------------------------------------
Capital Securities Guarantee
----------------------------
The recitals contained in this Series B 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 the validity
or sufficiency of this Series B 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 that
shall
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation or other Person 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 by the Securities and Exchange Commission to act as an indenture
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of
at least fifty million U.S. dollars ($50,000,000), and subject to
supervision or examination by federal, state, territorial or District of
Columbia authority; it being understood that if such corporation or other
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 4.1(a)(ii) and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the 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.
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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,
subject to Section 4.1, 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, subject to Section 4.1, 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 Series B 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
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 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
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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 Series B 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 Series B 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 Series B 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 Series B Capital Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Series B Capital Securities;
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Series B 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 Series B Capital
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred;
(g) the consummation of the Exchange Offer; or
(h) 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.
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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 Series B 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 Series B Capital Securities Guarantee or exercising any trust
or power conferred upon the Capital Securities Guarantee Trustee under this
Series B Capital Securities Guarantee.
(b) If the Capital Securities Guarantee Trustee fails to enforce this
Series B Capital Securities Guarantee, any Holder of the Series B Capital
Securities may institute a legal proceeding directly against the Guarantor to
enforce the Capital Securities Guarantee Trustee's rights under this Series B
Capital Securities Guarantee, without first instituting a legal proceeding
against the Issuer, the Capital Securities Guarantee Trustee or any other person
or entity. The Guarantor waives any right or remedy to require that any action
be brought first against the Issuer or any other person or entity before
proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
--------------------
This Series B Capital Securities Guarantee creates a guarantee of payment
and not of collection.
SECTION 5.6 Subrogation
-----------
The Guarantor shall be subrogated to all (if any) rights of the Holders of
Series B Capital Securities against the Issuer in respect of any amounts paid to
such Holders by the Guarantor under this Series B 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 Series B Capital
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Series B Capital Securities Guarantee. If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.7 Independent Obligations
-----------------------
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Series B 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 Series B
Capital Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (h), inclusive, of Section 5.3 hereof.
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ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
--------------------------
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, (ii) make any payment of principal of, or interest or premium, if
any, on or repay, repurchase or redeem any debt securities of the Guarantor
(including 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 the Guarantor of the debt securities of any subsidiary of the
Guarantor (including Other Guarantees) if such guarantee ranks pari passu with
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 shareholders' 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 this Series B
Capital Securities Guarantee and the Series A Capital Securities Guarantee, (d)
as a result of 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
or compensation plans for its directors, officers or employees or any of the
Guarantor's dividend reinvestment plans) if at such time (l) there shall have
occurred any event of which the Guarantor has actual knowledge that (A) is a
Default or Event of Default (each as defined in the Indenture) and (B) in
respect of which the Guarantor shall not have taken reasonable steps to cure,
(2) if the Debentures are held by the Property Trustee, the Guarantor shall be
in default with respect to its payment of any obligations under this Series B
Capital Securities Guarantee or (3) the Guarantor shall have given notice of its
election of the exercise of its right to commence an Extended Interest Payment
Period as provided in the Indenture and shall not have rescinded such notice,
and such Extended Interest Payment Period, or an extension thereof, shall have
commenced and be continuing.
SECTION 6.2 Ranking
-------
This Series B Capital Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all Allocable Amounts (as defined in the Indenture) in respect of
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 Series B
Capital Securities Guarantee as if such Article XV were set forth herein in
full, (ii) pari passu with the most senior preferred or preference stock now or
hereafter issued by the Guarantor and with the Series A Capital Securities
Guarantee, any Other Guarantee and, except to the extent set forth therein, the
Common Securities Guarantee, 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.
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ARTICLE VII
TERMINATION
SECTION 7.1 Termination
-----------
This Series B Capital Securities Guarantee shall terminate and be of no
further force and effect upon (i) full payment of the Redemption Price of all
Series B Capital Securities, (ii) dissolution, winding up or liquidation of the
Issuer, immediately following the full payment of the amounts payable in
accordance with the Declaration or (iii) the distribution of all of the
Debentures to the Holders of the Trust Securities. Notwithstanding the
foregoing, this Series B Capital Securities Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
of the Series B Capital Securities must restore payment of any sums paid under
the Series B Capital Securities or under this Series B Capital Securities
Guarantee.
ARTICLE VII
INDEMNIFICATION
SECTION 8.1 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 Series B 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 Series B 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 and who has been selected with reasonable care
by or on behalf of the Guarantor, 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 Series B Capital Securities might properly be
paid.
SECTION 8.2 Compensation and Indemnification
--------------------------------
The Guarantor agrees to pay to the Capital Securities Guarantee Trustee
such compensation for its services as shall be mutually agreed upon by the
Guarantor and the Capital Securities Guarantee Trustee. The Guarantor shall
reimburse the Capital Securities Guarantee Trustee upon request for all
reasonable out-of-pocket expenses incurred by it, including the reasonable
compensation and expenses of the Capital Securities Guarantee Trustee's agents
and counsel, except any expense as may be attributable to the negligence or bad
faith of the Capital Securities Guarantee Trustee.
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The Guarantor agrees to indemnify each Indemnified Person for, and to hold
each Indemnified Person harmless against, any and all loss, liability, damage,
action, suit, 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 provisions of this
Section 8.2 shall survive the termination of this Series B Capital Securities
Guarantee and shall survive the resignation or removal of the Capital Securities
Guarantee Trustee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
----------------------
All guarantees and agreements contained in this Series B Capital Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Series B Capital Securities then outstanding. Except in connection with
any merger or consolidation of the Guarantor with or into another entity
permitted by Section 10.01 of the Indenture or any sale, transfer, conveyance or
other disposition of the property of the Guarantor permitted by Section 10.01 of
the Indenture, the Guarantor may not assign its rights or delegate its
obligations under this Capital Securities Guarantee.
SECTION 9.2 Amendments
----------
Except with respect to any changes that do not materially adversely affect
the rights of Holders of the Series B Capital Securities (in which case no
consent of such Holders will be required), this Series B Capital Securities
Guarantee may only be amended with the prior approval of the Holders of a
Majority in Liquidation Amount of the Series B Capital Securities. The
provisions of Section 12.2 of the Declaration with respect to meetings of
Holders of the Trust Securities apply to the giving of such approval. This
Series B Capital Securities Guarantee may not be amended, and no amendment
hereof that affects the Capital Securities Guarantee Trustee's rights, duties or
immunities hereunder or otherwise, shall be effective, unless such amendment is
executed by the Capital Securities Guarantee Trustee (which shall have no
obligation to execute any such amendment, but may do so in its sole discretion).
SECTION 9.3 Notices
-------
All notices provided for in this Series B 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 Administrative Trustee at the
Issuer's mailing address set forth below (or such other address as the Issuer
may give notice of to the Capital Securities Guarantee Trustee and the Holders
of the Series B Capital Securities):
-17-
<PAGE>
ASTORIA CAPITAL TRUST I
c/o Astoria Financial Corporation
One Astoria Federal Plaza
Lake Success, New York 11042
Attention: Monte N. Redman
Telephone: (516) 327-7892
Telecopier: (516) 327-7860
(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 the Capital Securities Guarantee Trustee may give notice of to the
Holders of the Series B Capital Securities):
WILMINGTON TRUST COMPANY
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Telephone: (302) 651-1000
Telecopier: (302) 651-8882
(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 Capital
Securities Guarantee Trustee and the Holders of the Series B Capital
Securities):
ASTORIA FINANCIAL CORPORATION
One Astoria Federal Plaza
Lake Success, New York 11042
Attention: Alan P. Eggleston, Esq.
Telephone: (516) 327-7876
Telecopier: (516) 327-7860
(d) If given to any Holder of the Series B 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 9.4 Benefit
-------
This Series B Capital Securities Guarantee is solely for the benefit of the
Holders of the Series B Capital Securities and, subject to Section 3.1(a), is
not separately transferable from the Series B Capital Securities.
-18-
<PAGE>
SECTION 9.5 Governing Law
-------------
THIS SERIES B 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 CONFLICT OF LAW PRINCIPLES THEREOF.
This Series B Capital Securities Guarantee is executed as of the day and
year first above written.
ASTORIA FINANCIAL CORPORATION,
as Guarantor
By: /s/ George L. Engelke, Jr.
----------------------------------------
Chairman of the Board,
President and Chief Executive Officer
WILMINGTON TRUST COMPANY,
as Capital Securities Guarantee Trustee
By: /s/ James P. Lawler
----------------------------------------
James P. Lawler
Vice President
<PAGE>
EXHIBIT 4.11
================================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of October 25, 1999
by and among
ASTORIA FINANCIAL CORPORATION,
ASTORIA CAPITAL TRUST I
and
SANDLER O'NEILL & PARTNERS, L.P.,
as Initial Purchaser
================================================================================
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
---------
entered into as of October 25, 1999 by and among ASTORIA FINANCIAL CORPORATION,
a Delaware corporation (the "Company"), ASTORIA CAPITAL TRUST I, a business
-------
trust formed under the laws of the state of Delaware (the "Trust"), and SANDLER
-----
O'NEILL & PARTNERS, L.P. (the "Initial Purchaser").
-----------------
This Agreement is made pursuant to the Purchase Agreement dated
October 25, 1999 (the "Purchase Agreement"), by and among the Company, as issuer
------------------
of the 9.75% Junior Subordinated Deferrable Interest Debentures due November 1,
2029, Series A (the "Subordinated Debentures"), the Trust and the Initial
-----------------------
Purchaser, which provides for, among other things, the sale by the Trust to the
Initial Purchaser of 125,000 of the Trust's 9.75% Capital Securities, Series A,
liquidation amount $1,000 per Capital Security (the "Capital Securities"), the
------------------
proceeds of which will be used by the Trust, together with the proceeds from the
sale of the Trust's Common Securities to the Company, to purchase the
Subordinated Debentures. The Capital Securities, together with the Subordinated
Debentures and the Company's guarantee agreement in respect of the Capital
Securities (the "Capital Securities Guarantee"), are collectively referred to as
----------------------------
the "Securities." In order to induce the Initial Purchaser to enter into the
----------
Purchase Agreement, the Company and the Trust have agreed to provide to the
Initial Purchaser and its direct and indirect transferees the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
-----------
defined terms shall have the following meanings:
"Additional Distributions" shall have the meaning set forth in Section
------------------------
2(e) hereof.
"Advice" shall have the meaning set forth in the last paragraph of
------
Section 3 hereof.
"Affiliate" shall have the same meaning as given to that term in Rule
---------
405 under the Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(u)
-----------------
hereof.
"Business Day" shall mean any day other than a Saturday, a Sunday, or
------------
a day on which banking institutions in New York, New York or Wilmington,
Delaware are authorized or required by law or executive order to remain closed.
"Closing Time" shall mean the Closing Time as defined in the Purchase
------------
Agreement.
"Company" shall have the meaning set forth in the preamble to this
-------
Agreement and also includes the Company's successors and permitted assigns.
<PAGE>
"Debentures" shall collectively mean the Subordinated Debentures and
----------
the Exchange Debentures.
"Declaration" or "Declaration of Trust" shall mean the Amended and
----------- --------------------
Restated Declaration of Trust of Astoria Capital Trust I, dated as of the
Closing Time, by the trustees named therein and the Company as sponsor.
"Depositary" shall mean The Depository Trust Company, or any other
----------
depositary appointed by the Trust; provided, however, that such depositary must
-------- -------
have an address in the Borough of Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section
--------------------
2(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended from time to time.
"Exchange Offer" shall mean the offer by the Company and the Trust to
--------------
the Holders to exchange all of the Registrable Securities (other than Private
Exchange Securities) for a like amount of Exchange Securities pursuant to
Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
---------------------------
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
-------------------------------------
registration statement on SEC Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all exhibits
thereto and all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a)
---------------
hereof.
"Exchange Securities" shall mean (i) with respect to the Subordinated
-------------------
Debentures, the 9.75% Junior Subordinated Deferrable Interest Debentures due
November 1, 2029, Series B (the "Exchange Debentures") containing terms
-------------------
substantially identical to the Subordinated Debentures (except that they will
not contain terms with respect to the transfer restrictions under the Securities
Act (other than requiring minimum transfers thereof to be in blocks of $100,000
aggregate principal amount and multiples of $1,000 in excess thereof) and will
not provide for any Liquidated Damages thereon), (ii) with respect to the
Capital Securities, the Trust's 9.75% Capital Securities, Series B, liquidation
amount $1,000 per Capital Security (the "Exchange Capital Securities")
---------------------------
containing terms substantially identical to the Capital Securities (except they
will not contain terms with respect to transfer restrictions under the
Securities Act (other than requiring minimum transfers thereof to be in blocks
of $100,000 aggregate liquidation amount and multiples of $1,000 in excess
thereof) and will not provide for any increase in Additional Distributions
thereon) and (iii) with respect to the Capital Securities Guarantee, the
Company's guarantee agreement in respect of the Exchange Capital Securities (the
"Exchange Capital Securities Guarantee") containing terms substantially
-------------------------------------
identical to the Capital Securities Guarantee.
2
<PAGE>
"Holder" shall mean the Initial Purchaser, for so long as it owns any
------
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture or Declaration of Trust.
''Indenture" shall mean the Indenture relating to the Subordinated
---------
Debentures and the Exchange Debentures, dated as of the Closing Time, between
the Company, as issuer, and Wilmington Trust Company, as trustee, as the same
may be amended from time to time in accordance with the terms thereof.
"Initial Purchaser" shall have the meaning set forth in the preamble
-----------------
to this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(o) hereof.
----------
"Issue Date" shall mean October 28, 1999, the date of original
----------
issuance of the Securities.
"Liquidated Damages" shall have the meaning set forth in Section 2(e)
------------------
hereof.
"Majority Holders" shall mean the Holders of a majority of the
----------------
aggregate liquidation amount of outstanding Capital Securities.
"Participating Broker-Dealer" shall have the meaning set forth in
---------------------------
Section 3(u) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
------
unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2(a)
----------------
hereof.
"Private Exchange Securities" shall have the meaning set forth in
---------------------------
Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a Registration
----------
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all documents incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
------------------
to this Agreement.
"Records" shall have the meaning set forth in Section 3(o) hereof.
-------
3
<PAGE>
"Registrable Securities" shall mean the Securities and, if issued, the
----------------------
Private Exchange Securities; provided, however, that Securities or Private
-------- -------
Exchange Securities, as the case may be, shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such Securities or
Private Exchange Securities for the exchange or resale thereof, as the case may
be, shall have been declared effective under the Securities Act and such
Securities or Private Exchange Securities, as the case may be, shall have been
disposed of pursuant to such Registration Statement, (ii) such Securities or
Private Exchange Securities, as the case may be, shall have been sold to the
public pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or are eligible to be sold without
restriction as contemplated by Rule 144(k), (iii) such Securities or Private
Exchange Securities, as the case may be, shall have ceased to be outstanding or
(iv) with respect to the Securities, such Securities shall have been exchanged
for Exchange Securities upon consummation of the Exchange Offer and are
thereafter freely tradeable by the holder thereof (other than an Affiliate of
the Company).
"Registration Expenses" shall mean any and all expenses incident to
---------------------
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
----
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Securities in
accordance with the rules and regulations of the NASD, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of one counsel for all
underwriters or Holders as a group in connection with blue sky qualification of
any of the Exchange Securities or Registrable Securities) and compliance with
the rules of the NASD, (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus and any amendments or supplements
thereto, and in preparing or assisting in preparing, printing and distributing
any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) the fees and disbursements of counsel for the Company
and of the independent certified public accountants of the Company, including
the expenses of any "cold comfort" letters required by or incident to the
performance of and compliance with this Agreement, (vi) the reasonable fees and
expenses of the Trustees and their counsel and any exchange agent or custodian,
and (vii) the reasonable fees and expenses of any special experts retained by
the Company in connection with any Registration Statement.
"Registration Statement" shall mean any registration statement of the
----------------------
Company and the Trust which covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein.
"Rule 144(k) Period" shall mean the period of two years (or such
------------------
shorter period as may hereafter be referred to in Rule 144(k) under the
Securities Act (or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
---
4
<PAGE>
"Securities" shall have the meaning set forth in the preamble to this
----------
Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended
--------------
from time to time.
"Shelf Registration" shall mean a registration effected pursuant to
------------------
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
------------------------
2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set forth in
-----------------------------
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
----------------------------
statement of the Company and the Trust pursuant to the provisions of Section
2(b) hereof which covers all of the Registrable Securities or all of the Private
Exchange Securities, as the case may be, on an appropriate form under Rule 415
under the Securities Act, or any similar rule that may be adopted by the SEC,
and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended from time
---
to time.
"Trustees" shall mean any and all trustees under the Declaration, the
--------
Indenture, the Capital Securities Guarantee or the Exchange Capital Securities
Guarantee.
2. Registration Under the Securities Act.
-------------------------------------
(a) Exchange Offer. Except as set forth in Section 2(b) below, the
--------------
Company and the Trust shall, for the benefit of the Holders, at the Company's
cost, use their best efforts to (i) cause to be filed with the SEC within 150
days after the Issue Date an Exchange Offer Registration Statement on an
appropriate form under the Securities Act relating to the Exchange Offer, (ii)
cause such Exchange Offer Registration Statement to be declared effective under
the Securities Act by the SEC not later than the date which is 180 days after
the Issue Date, and (iii) keep such Exchange Offer Registration Statement
effective for not less than 30 calendar days (or longer if required by
applicable law) after the date notice of the Exchange Offer is mailed to the
Holders. Promptly after the effectiveness of the Exchange Offer Registration
Statement, the Company and the Trust shall commence the Exchange Offer, it being
the objective of such Exchange Offer to enable each Holder eligible and electing
to exchange Registrable Securities for a like principal amount of Exchange
Debentures or a like liquidation amount of Exchange Capital Securities, together
with the Exchange Capital Securities Guarantee, as applicable (provided that
such Holder (w) is not an Affiliate of the Trust or the Company, (x) is not a
broker-dealer tendering Registrable Securities acquired directly from the Trust
or the Company, (y) acquires the Exchange Securities in the ordinary course of
such Holder's business and (z) has no arrangements or understandings with any
Person to participate in the Exchange Offer for the purpose of distributing the
Exchange Securities), to transfer such Exchange Securities from and after their
receipt without any limitations or restrictions under the Securities Act and
under state securities or blue sky laws (other than requiring minimum transfers
in blocks having an aggregate principal or liquidation amount, as the case may
be, of $100,000 and multiples of $1,000 in excess thereof).
5
<PAGE>
In connection with the Exchange Offer, the Company and the Trust
shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less
than 30 days after the date notice thereof is mailed to the Holders (or longer
if required by applicable law) (such period referred to herein as the "Exchange
--------
Period");
- ------
(iii) utilize the services of the Depositary for the Exchange Offer with
respect to Capital Securities represented by a global certificate;
(iv) permit Holders to withdraw tendered Securities at any time prior to
the close of business, New York time, on the last Business Day of the Exchange
Period, by sending to the institution specified in the notice to Holders, a
telegram, telex, facsimile transmission or letter setting forth the name of such
Holder, the amount of Securities delivered for exchange and a statement that
such Holder is withdrawing his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in
the Exchange Offer will remain outstanding and continue to accrue interest or
accumulate distributions, as the case may be, but will not retain any rights
under this Agreement (except in the case of the Initial Purchaser and
Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to
the Exchange Offer.
If the Initial Purchaser determines upon advice of its outside counsel
that it is not eligible to participate in the Exchange Offer with respect to the
exchange of Securities constituting any portion of an unsold allotment in the
initial placement, as soon as practicable upon receipt by the Company and the
Trust of a written request from the Initial Purchaser, the Company and the
Trust, as applicable, shall issue and deliver to the Initial Purchaser in
exchange (the "Private Exchange") for the Securities held by the Initial
----------------
Purchaser a like liquidation amount of Exchange Capital Securities of the Trust
or, in the event the Trust is liquidated and Subordinated Debentures are
distributed, a like principal amount of the Exchange Debentures of the Company,
together with the Exchange Capital Securities Guarantee, in each case that are
identical (except that such securities may bear a customary legend with respect
to restrictions on transfer pursuant to the Securities Act) to the Exchange
Securities (the "Private Exchange Securities") and which are issued pursuant to
---------------------------
the Indenture or the Declaration (which provides that the Exchange Securities
will not be subject to the transfer restrictions set forth in the Indenture or
the Declaration, as applicable (other than requiring minimum transfers in blocks
having an aggregate principal or liquidation amount, as the case may be, of
$100,000 and multiples of $1,000 in excess thereof), and that the Exchange
Securities, the Private Exchange Securities and the Securities will vote and
consent together on all matters as one class and that none of the Exchange
Securities, the Private Exchange Securities or the Securities will have the
right to vote or consent as a separate class on any matter). The Private
Exchange Securities shall be of the same series as the Exchange Securities, and
the Company and the Trust will seek to cause the CUSIP Service Bureau to issue
the same CUSIP numbers for the Private Exchange Securities as for the Exchange
Securities issued pursuant to the Exchange Offer.
6
<PAGE>
As soon as practicable after the close of the Exchange Offer and, if
applicable, the Private Exchange, the Company and the Trust, as the case
requires, shall:
(i) accept for exchange all Securities or portions thereof tendered and
not validly withdrawn pursuant to the Exchange Offer or the Private Exchange;
(ii) deliver, or cause to be delivered, to the applicable Trustee for
cancellation all Securities or portions thereof so accepted for exchange by the
Company and the Trust; and
(iii) issue, and cause the applicable Trustee under the Indenture or
the Declaration, as applicable, to promptly authenticate and deliver to each
Holder, new Exchange Securities or Private Exchange Securities, as applicable,
equal in principal amount to the principal amount of the Subordinated Debentures
or equal in liquidation amount to the liquidation amount of the Capital
Securities as are surrendered by such Holder, and will execute, and cause the
applicable Trustee to execute, the Exchange Capital Securities Guarantee.
Distributions on each Exchange Capital Security and interest or
distributions on each Exchange Debenture and Private Exchange Security issued
pursuant to the Exchange Offer and in the Private Exchange will accumulate or
accrue from the last date on which a distribution or interest was paid on the
Capital Security or the Subordinated Debenture surrendered in exchange therefor
or, if no distribution or interest has been paid on such Capital Security or
Subordinated Debenture, from the Issue Date. To the extent not prohibited by any
law or applicable interpretation of the staff of the SEC, the Company and the
Trust shall use their best efforts to complete the Exchange Offer as provided
above, and shall comply with the applicable requirements of the Securities Act,
the Exchange Act and other applicable laws in connection with the Exchange
Offer. The Exchange Offer shall not be subject to any conditions other than the
conditions referred to in Section 2(b)(i) and (ii) below and those conditions
that are customary in similar exchange offers. Each Holder of Registrable
Securities who wishes to exchange such Registrable Securities for Exchange
Securities in the Exchange Offer will be required to make certain customary
representations in connection therewith, including, in the case of any Holder of
Capital Securities, representations that (i) it is not an Affiliate of the Trust
or the Company, (ii) it is not a broker-dealer tendering Registrable Securities
acquired directly from the Trust or Company, (iii) the Exchange Securities to be
received by it were acquired in the ordinary course of its business and (iv) at
the time of the Exchange Offer, it has no arrangements or understandings with
any Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Capital Securities. The Company and the Trust
shall inform the Initial Purchaser, after consultation with the applicable
Trustees, of the names and addresses of the Holders to whom the Exchange Offer
is made, and the Initial Purchaser shall have the right to contact such Holders
in order to facilitate the tender of Registrable Securities in the Ex change
Offer.
Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply, mutatis
-------
mutandis, solely with respect to Registrable Securities that are Private
- --------
Exchange Securities and Exchange Securities held by Participating Broker-
Dealers, and the Company and the Trust shall have no further obligation to
register the Registrable Securities (other than Private Exchange Securities)
held by any Holder pursuant to Section 2(b) of this Agreement.
7
<PAGE>
(b) Shelf Registration. In the event that (i) the Company or the Trust
------------------
reasonably determine, after conferring with counsel (which may be in-house
counsel), that the Exchange Offer Registration provided in Section 2(a) above is
not available under applicable law and regulations and currently prevailing
interpretations of the staff of the SEC, (ii) the Company shall determine in
good faith that there is a reasonable likelihood that, or a material uncertainty
exists as to whether, consummation of the Exchange Offer would result in (x) the
Trust becoming subject to federal income tax with respect to income received or
accrued on the Debentures, (y) the interest payable by the Company on the
Debentures not being deductible by the Company for United States federal income
tax purposes or (z) the Trust becoming subject to more than a de minimis amount
----------
of other taxes, duties or governmental charges, (iii) the Exchange Offer
Registration Statement is not declared effective within 180 days of the Issue
Date or (iv) upon the request of the Initial Purchaser with respect to any
Registrable Securities held by it, if the Initial Purchaser is not permitted, in
the reasonable opinion of Brown & Wood LLP, pursuant to applicable law or
applicable interpretations of the staff of the SEC, to participate in the
Exchange Offer and thereby receive securities that are freely tradeable without
restriction under the Securities Act and applicable blue sky or state securities
laws (any of the events specified in (i), (ii), (iii) or (iv) being a "Shelf
-----
Registration Event," and the date of occurrence thereof, the "Shelf Registration
- ------------------ ------------------
Event Date"), then in addition to or in lieu of conducting the Exchange Offer
- ----------
contemplated by Section 2(a), as the case may be, the Company and the Trust
shall, at their cost, use their best efforts to cause to be filed as promptly as
practicable after such Shelf Registration Event Date, as the case may be, and,
in any event, within 45 days after such Shelf Registration Event Date (provided
that in no event shall such filing date be required to be earlier than 75 days
after the Issue Date), a Shelf Registration Statement providing for the sale by
the Holders of all of the Registrable Securities, and shall use their best
efforts to have such Shelf Registration Statement declared effective by the SEC
as soon as practicable. No Holder of Registrable Securities shall be entitled to
include any of its Registrable Securities in any Shelf Registration pursuant to
this Agreement unless and until such Holder agrees in writing to be bound by all
of the provisions of this Agreement applicable to such Holder and furnishes to
the Company and the Trust in writing, within 15 days after receipt of a request
therefor, such information as the Company and the Trust may, after conferring
with counsel with regard to information relating to Holders that would be
required by the SEC to be included in such Shelf Registration Statement or
Prospectus included therein, reasonably request for inclusion in any Shelf
Registration Statement or Prospectus included therein. Each Holder as to which
any Shelf Registration is being effected agrees to furnish to the Company and
the Trust all information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not materially
misleading.
The Company and the Trust agree to use their best efforts to keep the
Shelf Registration Statement continuously effective and usable for resales for
(a) the Rule 144(k) Period in the case of a Shelf Registration Statement filed
pursuant to Section 2(b)(i), (ii) or (iii) or (b) 180 days in the case of a
Shelf Registration Statement filed pursuant to Section 2(b)(iv) (subject in each
case to extension pursuant to the last paragraph of Section 3 hereof), or for
such shorter period which will terminate when all of the Securities covered by
the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be Registrable Securities (the "Effectiveness
-------------
Period"). The Company and the Trust shall not permit any securities other than
- ------
Registrable Securities to be included in the Shelf Registration. The Company and
the Trust will, in the event a Shelf Registration Statement is declared
effective, provide to each Holder a reasonable number of copies of the
Prospectus which is a part of the Shelf Registration Statement, notify each such
Holder when
8
<PAGE>
the Shelf Registration has become effective and take certain other actions as
are required to permit certain unrestricted resales of the Registrable
Securities. The Company and the Trust further agree, if necessary, to supplement
or amend the Shelf Registration Statement, if required by the rules, regulations
or instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Company and the Trust
agree to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(c) Expenses. The Company, as issuer of the Subordinated Debentures,
--------
shall pay all Registration Expenses in connection with any Registration
Statement filed pursuant to Section 2(a) and/or 2(b) hereof and will reimburse
the Initial Purchaser for the reasonable fees and disbursements of counsel for
the Initial Purchaser, incurred in connection with the Exchange Offer and, if
applicable, the Private Exchange, and any other single counsel designated in
writing by the Majority Holders to act as counsel for the Holders of the
Registrable Securities in connection with a Shelf Registration Statement, which
other counsel shall be reasonably satisfactory to the Company. Except as
provided herein, each Holder shall pay all expenses of its counsel, underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Shelf
Registration Statement.
(d) Effective Registration Statement. An Exchange Offer Registration
--------------------------------
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if,
-------- -------
after it has been declared effective, the offering of Registrable Securities
pursuant to such Exchange Offer Registration Statement or Shelf Registration
Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such Exchange
Offer Registration Statement or Shelf Registration Statement will be deemed not
to have been effective during the period of such interference, until the
offering of Registrable Securities pursuant to such Registration Statement may
legally resume. The Company and the Trust will be deemed not to have used their
best efforts to cause the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to become, or to remain, effective
during the requisite period if either of them voluntarily takes any action that
would result in any such Registration Statement not being declared effective or
that would result in the Holders of Registrable Securities covered thereby not
being able to exchange or offer and sell such Registrable Securities during that
period, unless such action is required by applicable law.
(e) Liquidated Damages and Additional Distributions. In the event
-----------------------------------------------
that:
(i) neither the Exchange Offer Registration Statement is filed with the SEC
on or prior to the 150/th/ day after the Issue Date nor a Shelf Registration
Statement is filed with the SEC on or prior to the 45/th/ day after the Shelf
Registration Event Date in respect of a Shelf Registration Event attributable to
any of the events set forth in Sections 2(b)(i), (ii) and (iii) (provided that
in no event shall such filing date be required to be earlier than 75 days after
the Issue Date), then commencing on the day after the applicable required filing
date, liquidated damages ("Liquidated Damages") shall accrue on the principal
------------------
amount of the Subordinated Debentures, and additional distributions ("Additional
----------
Distributions") shall accumulate on the liquidation amount of the Trust
- -------------
Securities (as such term is defined in the Declaration), each at a rate of 25
basis points per annum; or
9
<PAGE>
(ii) neither the Exchange Offer Registration Statement is declared
effective by the SEC on or prior to the 180/th/ day after the Issue Date nor a
Shelf Registration Statement is declared effective by the SEC on or prior to the
later of (A) the 40/th/ day after the date such Shelf Registration Statement was
required to be filed and (B) the 180/th/ day after the Issue Date, in respect of
a Shelf Registration Event attributable to any of the events set forth in
Sections 2(b)(i), (ii) and (iii), then, commencing on the day after the
applicable required effectiveness date, Liquidated Damages shall accrue on the
principal amount of the Subordinated Debentures, and Additional Distributions
shall accumulate on the liquidation amount of the Trust Securities, each at a
rate of 25 basis points per annum; or
(iii) (A) the Trust has not exchanged Exchange Capital Securities for all
Capital Securities or the Company has not exchanged Exchange Debentures for all
Subordinated Debentures, in each case validly tendered during the Exchange
Period, or executed the Exchange Capital Securities Guarantee in respect of the
Exchange Capital Securities, in accordance with the terms of the Exchange Offer
on or prior to the 45/th/ day after the date on which the Exchange Offer
Registration Statement was declared effective or (B) if applicable, the Shelf
Registration Statement in respect of a Shelf Registration Event attributable to
any of the events set forth in Sections 2(b)(i), (ii) and (iii) has been
declared effective and such Shelf Registration Statement ceases to be effective
or usable for resales (whether as a result of an event contemplated by Section
3(e) or otherwise) at any time prior to the expiration of the Rule 144(k) Period
(other than after such time as all Securities have been disposed of thereunder
or otherwise cease to be Registered Securities), then Liquidated Damages shall
accrue on the principal amount of Subordinated Debentures, and Additional
Distributions shall accumulate on the liquidation amount of the Trust
Securities, each at a rate of 25 basis points per annum commencing on (x) the
46/th/ day after such effective date, in the case of (A) above, or (y) the day
such Shelf Registration Statement ceases to be effective or usable for resales,
in the case of (B) above;
provided, however, that neither the Liquidated Damages rate on the Subordinated
- -------- -------
Debentures, nor the Additional Distribution rate on the liquidation amount of
the Trust Securities, may exceed in the aggregate 25 basis points per annum;
provided, further, however, that (1) upon the filing of the Exchange Offer
- -------- ------- -------
Registration Statement or a Shelf Registration Statement (in the case of clause
(i) above), (2) upon the effectiveness of the Exchange Offer Registration
Statement or a Shelf Registration Statement (in the case of clause (ii) above)
or (3) upon the exchange of Exchange Capital Securities and Exchange Debentures
for all Capital Securities and Subordinated Debentures validly tendered and
execution of the Exchange Capital Securities Guarantee (in the case of clause
(iii)(A) above) or at such time as the Shelf Registration Statement that had
ceased to remain effective or usable for resales again becomes effective and
usable for resales (in the case of clause (iii)(B) above), Liquidated Damages on
the principal amount of the Subordinated Debentures and Additional Distributions
on the liquidation amount of the Trust Securities as a result of such clause (or
the relevant subclause thereof) shall cease to accrue and accumulate, as the
case may be.
Any amounts of Liquidated Damages and Additional Distributions due
pursuant to Section 2(e)(i), (ii) or (iii) above will be payable in cash on the
next succeeding May 1/st/ and November 1/st/, as the case may be, to Holders on
the relevant record dates for the payment of interest and distributions pursuant
to the Indenture and the Declaration, respectively.
10
<PAGE>
(f) Specific Enforcement. Without limiting the remedies available to
--------------------
the Holders, the Company and the Trust acknowledge that any failure by the
Company or the Trust to comply with its obligations under Section 2(a) and
Section 2(b) hereof may result in material irreparable injury to the Holders for
which there is no adequate remedy at law, that it would not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, any Holder may obtain such relief as may be required to specifically
enforce the Company's and the Trust's obligations under Section 2(a) and Section
2(b) hereof.
(g) Distribution of Subordinated Debentures. Notwithstanding any other
---------------------------------------
provisions of this Agreement, in the event that Subordinated Debentures are
distributed to holders of Capital Securities in liquidation of the Trust
pursuant to the Declaration, (i) all references in this Section 2 and in Section
3 to Securities, Registrable Securities and Exchange Securities shall not
include the Capital Securities and Capital Securities Guarantee or the Exchange
Capital Securities and Exchange Capital Securities Guarantee issued or to be
issued in exchange therefor in the Exchange Offer and (ii) all requirements for
any action to be taken by the Trust in this Section 2 and in Section 3 shall
cease to apply and all requirements for any action to be taken by the Company in
this Section 2 and in Section 3 shall apply to the Subordinated Debentures and
Exchange Debentures issued or to be issued in exchange therefor in the Exchange
Offer.
3. Registration Procedures. In connection with the obligations of
-----------------------
the Company and the Trust with respect to the Registration Statements pursuant
to Sections 2(a) and 2(b) hereof, the Company and the Trust shall use their best
efforts to:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within
the relevant time period specified in Section 2 hereof on the appropriate form
under the Securities Act, which form (i) shall be selected by the Company and
the Trust, (ii) shall, in the case of a Shelf Registration, be available for the
sale of the Registrable Securities by the selling Holders thereof and, in the
case of an Exchange Offer, be available for the exchange of Registrable
Securities and (iii) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith; and use their best efforts to cause
such Registration Statement to become effective and remain effective (and, in
the case of a Shelf Registration Statement, usable for resales) in accordance
with Section 2 hereof; provided, however, that if (1) such filing is pursuant to
-------- -------
Section 2(b), or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Securities, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company and the Trust shall furnish to
and afford the Holders of the Registrable Securities and each such Participating
Broker-Dealer, as the case may be, covered by such Registration Statement, their
counsel and the managing underwriters, if any, a reasonable opportunity (not to
exceed seven Business Days) to review copies of all such documents (including
copies of any documents to be incorporated by reference therein and all exhibits
thereto) proposed to be filed. The Company and the Trust shall not file any
Registration Statement or Prospectus or any amendments or supplements thereto in
respect of which the Holders must be afforded an opportunity to review prior to
the filing of such document if the Majority Holders or such Participating
Broker-Dealer, as the case may be, their counsel or the managing underwriters,
if any, shall reasonably object in a timely manner;
11
<PAGE>
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the Effectiveness Period or the Applicable
Period, as the case may be; and cause each Prospectus to be supplemented, if so
determined by the Company or the Trust or requested by the SEC, by any required
prospectus supplement and as so supplemented to be filed pursuant to Rule 424
(or any similar provision then in force) under the Securities Act, and comply
with the provisions of the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder applicable to it with respect to the
disposition of all securities covered by each Registration Statement during the
Effectiveness Period or the Applicable Period, as the case may be, in accordance
with the intended method or methods of distribution by the selling Holders
thereof described in this Agreement (including sales by any Participating
Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities included in the Shelf Registration Statement, at least
three Business Days prior to filing, that a Shelf Registration Statement with
respect to the Registrable Securities is being filed and advising such Holder
that the distribution of Registrable Securities will be made in accordance with
the method selected by the Majority Holders; and (ii) furnish to each Holder of
Registrable Securities included in the Shelf Registration Statement and to each
underwriter of an underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto, and such other documents as
such Holder or underwriter may reasonably request, in order to facilitate the
public sale or other disposition of the Registrable Securities; and (iii)
consent to the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Registrable Securities included in the Shelf
Registration Statement in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto;
(d) in the case of a Shelf Registration, register or qualify the
Registrable Securities under all applicable state securities or "blue sky" laws
of such jurisdictions by the time the applicable Registration Statement is
declared effective by the SEC as any Holder of Registrable Securities covered by
a Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request in writing in advance of such
date of effectiveness, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder and underwriter to
consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the Company and the
-------- -------
Trust shall not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (ii) file any general consent to
service of process in any jurisdiction where it would not otherwise be subject
to such service of process or (iii) subject itself to taxation in any such
jurisdiction if it is not then so subject;
(e) (1) in the case of a Shelf Registration or (2) if Participating
Broker-Dealers from whom the Company or the Trust has received prior written
notice that they will be utilizing the Prospectus contained in the Exchange
Offer Registration Statement as provided in Section 3(u) hereof, are seeking to
sell Exchange Securities and are required to deliver Prospectuses, promptly
notify each Holder of Registrable Securities, or such Participating Broker-
Dealers, as the case may be, their counsel and the managing underwriters, if
any, and promptly confirm such notice in writing
12
<PAGE>
(i) when a Registration Statement has become effective and when any post-
effective amendments thereto become effective, (ii) of any request by the SEC or
any state securities authority for amendments and supplements to a Registration
Statement or Prospectus or for additional information after the Registration
Statement has become effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the qualification of the Registrable Securities or the
Exchange Securities to be offered or sold by any Participating Broker-Dealer in
any jurisdiction described in paragraph 3(d) hereof or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf Registration, if,
between the effective date of a Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warranties of the Company and the Trust contained in any purchase agreement,
securities sales agreement or other similar agreement cease to be true and
correct in all material respects, (v) of the happening of any event or the
failure of any event to occur or the discovery of any facts, during the
Effectiveness Period, which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or which
causes such Registration Statement or Prospectus to omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (vi) of the
reasonable determination of the Company and the Trust that a post-effective
amendment to the Registration Statement would be appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness of
a Registration Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities included within the coverage of such Shelf Registration
Statement, without charge, at least one conformed copy of each Registration
Statement relating to such Shelf Registration and any post-effective amendment
thereto (without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends (other than with respect to restrictions
requiring minimum transfers in blocks having an aggregate principal or
liquidation amount, as the case may be, of $100,000 and multiples of $1,000 in
excess thereof) and in such denominations (consistent with the provisions of the
Indenture and the Declaration) and registered in such names as the selling
Holders or the underwriters may reasonably request at least two Business Days
prior to the closing of any sale of Registrable Securities pursuant to such
Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, promptly after the occurrence of any event specified in Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, prepare a supplement or post-
effective amendment to such Registration Statement or the related Prospectus or
any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not include any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and to notify each Holder to suspend use of the Prospectus as promptly as
13
<PAGE>
practicable after the occurrence of such an event, and each Holder hereby agrees
to suspend use of the Prospectus until the Company has amended or supplemented
the Prospectus to correct such misstatement or omission;
(j) in the case of a Shelf Registration, a reasonable time prior to
the filing of any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after the initial filing of a
Registration Statement, provide a reasonable number of copies of such document
to the Holders; and make such of the representatives of the Company and the
Trust as shall be reasonably requested by the Holders of Registrable Securities
or the Initial Purchaser on behalf of such Holders available for discussion of
such document;
(k) obtain a CUSIP number for all Exchange Capital Securities and the
Capital Securities (and, if the Trust has made a distribution of the
Subordinated Debentures to the Holders of the Capital Securities, the
Subordinated Debentures or the Exchange Debentures), as the case may be, not
later than the effective date of a Registration Statement, and provide the
applicable Trustee with certificates for the Exchange Securities or the
Registrable Securities, as the case may be, in a form eligible for deposit with
the Depositary;
(l) cause the Indenture, the Declaration, the Capital Securities
Guarantee (in the case of a Shelf Registration) and the Exchange Capital
Securities Guarantee (in the case of an Exchange Offer Registration) to be
qualified under the TIA, in connection with the registration of the Exchange
Securities or Registrable Securities, as the case may be, and effect such
changes to such documents as may be required for them to be so qualified in
accordance with the terms of the TIA and execute, and cause the applicable
Trustee to execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the SEC to enable such
documents to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten offerings
and take all such other appropriate actions in connection therewith as are
reasonably requested by the Holders of at least 25% in aggregate principal or
liquidation amount, as the case may be, of the Registrable Securities in order
to expedite or facilitate the registration or the disposition or the Registrable
Securities;
(n) in the case of a Shelf Registration, whether or not an
underwriting agreement is entered into and whether or not the registration is an
underwritten registration, if requested by (x) the Initial Purchaser, in the
case where the Initial Purchaser holds Securities acquired by it as part of its
initial placement and (y) Holders of at least 25% in aggregate principal or
liquidation amount, as the case may be, of the Registrable Securities covered
thereby: (i) make such representations and warranties to Holders of such
Registrable Securities and the underwriters (if any), with respect to the
business of the Trust, the Company and the subsidiaries of the Company as then
conducted and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, as
are customarily made by issuers to underwriters in underwritten offerings, and
confirm the same if and when requested; (ii) obtain opinions of counsel to the
Company and the Trust and updates thereof (which may be in the form of a
reliance letter) in form and substance reasonably satisfactory to the managing
underwriters (if any) and the Holders of a majority in aggregate principal or
liquidation amount, as the case may be, of the Registrable
14
<PAGE>
Securities being sold, addressed to each selling Holder and the underwriters (if
any) covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
such underwriters (it being agreed that the matters to be covered by such
opinion may be subject to customary qualifications and exceptions); (iii) obtain
"cold comfort" letters and updates thereof in form and substance reasonably
satisfactory to the managing underwriters from the independent certified public
accountants of the Company and the Trust (and, if necessary, any other
independent certified public accountants of any business acquired by the Company
and the Trust for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as reasonably requested by such
underwriters in accordance with Statement on Auditing Standards No. 72; and (iv)
if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set forth
in Section 4 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal or liquidation amount, as the case
may be, of Registrable Securities covered by such Registration Statement and the
managing underwriters) customary for such agreements with respect to all parties
to be indemnified pursuant to said Section (including, without limitation, such
underwriters and selling Holders); and in the case of an underwritten
registration, the above requirements shall be satisfied at each closing under
the related underwriting agreement or as and to the extent required thereunder;
(o) if (1) a Shelf Registration is filed pursuant to Section 2(b) or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, make reasonably available for inspection by any selling
Holder of Registrable Securities or Participating Broker-Dealer, as applicable,
who certifies to the Company and the Trust that it has a current intention to
sell Registrable Securities pursuant to the Shelf Registration, any underwriter
participating in any such disposition of Registrable Securities, if any, and any
attorney, accountant or other agent retained by any such selling Holder,
Participating Broker-Dealer, as the case may be, or underwriter (collectively,
the "Inspectors"), at the offices where normally kept, during the Company's
----------
normal business hours, all financial and other records, pertinent corporate
documents and properties of the Trust, the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable them to
-------
exercise any applicable due diligence responsibilities, and cause the officers,
directors and employees of the Trust, the Company and its subsidiaries to supply
all relevant information in each case reasonably requested by any such Inspector
in connection with such Registration Statement; records and information which
the Company and the Trust determine, in good faith, to be confidential and any
Records and information which it notifies the Inspectors are confidential shall
not be disclosed to any Inspector except where (i) the disclosure of such
Records or information is necessary to avoid or correct a material misstatement
or omission in such Registration Statement, (ii) the release of such Records or
information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or is necessary in connection with any action, suit or
proceeding or (iii) such Records or information previously has been made
generally available to the public; each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be required to agree
in writing that Records and information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of
15
<PAGE>
the Trust or the Company unless and until such is made generally available to
the public through no fault of an Inspector or a selling Holder; and each
selling Holder of such Registrable Securities and each such Participating
Broker-Dealer will be required to further agree in writing that it will, upon
learning that disclosure of such Records or information is sought in a court of
competent jurisdiction, or in connection with any action, suit or proceeding,
give notice to the Company and allow the Company at its expense to undertake
appropriate action to prevent disclosure of the Records and information deemed
confidential;
(p) comply with all applicable rules and regulations of the SEC so
long as any provision of this Agreement shall be applicable and make generally
available to its securityholders earning statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements shall
cover said 12 month periods, provided that the obligations under this paragraph
(p) shall be satisfied by the timely filing of quarterly and annual reports on
Forms 10-Q and 10-K under the Exchange Act;
(q) upon consummation of an Exchange Offer or a Private Exchange, if
requested by a Trustee, obtain an opinion of counsel to the Company addressed to
the Trustee for the benefit of all Holders of Registrable Securities
participating in the Exchange Offer or the Private Exchange, as the case may be,
substantially to the effect that (i) each of the Company and the Trust, as the
case requires, has duly authorized, executed and delivered the Exchange
Securities and Private Exchange Securities, and (ii) each of the Exchange
Securities or the Private Exchange Securities, as the case may be, constitutes a
validly issued, fully paid and nonassessable undivided beneficial ownership
interest in the assets of the Trust (in the case of an Exchange Capital
Security) or a legal, valid and binding obligation of the Company, enforceable
against the Company, in accordance with its respective terms (in the case of an
Exchange Debenture and the Exchange Capital Securities Guarantee), as the case
may be (in each case, with customary exceptions);
(r) if an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Securities by Holders to the Company or the
Trust, as applicable (or to such other Person as directed by the Company or the
Trust, respectively), in exchange for the Exchange Securities or the Private
Exchange Securities, as the case may be, the Company or the Trust, as
applicable, shall mark, or cause to be marked, on such Registrable Securities
delivered by such Holders that such Registrable Securities are being canceled in
exchange for the Exchange Securities or the Private Exchange Securities, as the
case may be; it being understood that in no event shall such Registrable
Securities be marked as paid or otherwise satisfied;
(s) cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD;
16
<PAGE>
(t) take all other steps necessary to effect the registration of the
Registrable Securities covered by a Registration Statement contemplated hereby;
(u) (A) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," which section shall be reasonably acceptable to the Initial
Purchaser or another representative of the Participating Broker-Dealers, and
which shall contain a summary statement of the positions taken or policies made
by the staff of the SEC with respect to the potential "underwriter" status of
any broker-dealer that holds Registrable Securities acquired for its own account
as a result of market-making activities or other trading activities
(a "Participating Broker-Dealer") and that will be the beneficial owner
----------------------------
(as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities to be
received by such broker-dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the SEC or such
positions or policies, in the reasonable judgment of the Initial Purchaser or
such other representative, represent the prevailing views of the staff of the
SEC, including a statement that any such broker-dealer who receives Exchange
Securities for Registrable Securities pursuant to the Exchange Offer may be
deemed a statutory underwriter and must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Securities, (ii) furnish to each Participating Broker-Dealer who has
delivered to the Company the notice referred to in Section 3(e), without charge,
as many copies of each Prospectus included in the Exchange Offer Registration
Statement, including any preliminary Prospectus, and any amendment or supplement
thereto, as such Participating Broker-Dealer may reasonably request (each of the
Company and the Trust hereby consents to the use of the Prospectus forming part
of the Exchange Offer Registration Statement or any amendment or supplement
thereto by any Person subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers, in connection with
the sale or transfer of the Exchange Securities covered by the Prospectus or any
amendment or supplement thereto), (iii) use their best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such Persons must comply with such
requirements under the Securities Act and applicable rules and regulations in
order to resell the Exchange Securities; provided, however, that such period
-------- -------
shall not be required to exceed 90 days (or such longer period if extended
pursuant to the last sentence of Section 3 hereof) (the "Applicable Period"),
-----------------
and (iv) include in the transmittal letter or similar documentation to be
executed by an exchange offeree in order to participate in the Exchange Offer
(x) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable
Securities acquired for its own account as a result of market-making
activities or other trading activities, it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any
resale of Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the broker-dealer will
not be deemed to admit that it is an underwriter within the meaning of the
17
<PAGE>
Securities Act; and (B) in the case of any Exchange Offer Registration
Statement, the Company and the Trust agree to deliver to the Initial Purchaser
or to another representative of the Participating Broker-Dealers, if requested
by the Initial Purchaser or such other representative of Participating Broker-
Dealers, on behalf of the Participating Broker-Dealers upon consummation of the
Exchange Offer (i) an opinion of counsel in form and substance reasonably
satisfactory to the Initial Purchaser or such other representative of the
Participating Broker-Dealers, covering the matters customarily covered in
opinions requested in connection with Exchange Offer Registration Statements and
such other matters as may be reasonably requested (it being agreed that the
matters to be covered by such opinion may be subject to customary qualifications
and exceptions), (ii) an officers' certificate containing certifications
substantially similar to those set forth in Section 5(f) of the Purchase
Agreement and such additional certifications as are customarily delivered in a
public offering of debt securities and (iii) as well as upon the effectiveness
of the Exchange Offer Registration Statement, a comfort letter, in each case, in
customary form if permitted by Statement on Auditing Standards No. 72.
The Company or the Trust may require each seller of Registrable
Securities as to which any registration is being effected to furnish to the
Company or the Trust, as applicable, such information regarding such seller as
may be required by the staff of the SEC to be included in a Registration
Statement. The Company or the Trust may exclude from such registration the
Registrable Securities of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request. The Company
shall have no obligation to register under the Securities Act the Registrable
Securities of a seller who so fails to furnish such information.
In the case of a Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Company and the Trust that they will be
utilizing the Prospectus contained in the Exchange Offer Registration Statement
as provided in this Section 3(u) hereof, are seeking to sell Exchange Securities
and are required to deliver Prospectuses, each Holder agrees that, upon receipt
of any notice from the Company or the Trust of the occurrence of any event
specified in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to a Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof or until
it is advised in writing (the "Advice") by the Company and the Trust that the
------
use of the applicable Prospectus may be resumed, and, if so directed by the
Company and the Trust, such Holder will deliver to the Company or the Trust (at
the Company's or the Trust's expense, as the case requires) all copies in such
Holder's possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities or Exchange
Securities, as the case may be, current at the time of receipt of such notice.
If the Company or the Trust shall give any such notice to suspend the
disposition of Registrable Securities or Exchange Securities, as the case may
be, pursuant to a Registration Statement, the Company and the Trust shall use
their best efforts to file and have declared effective (if an amendment) as soon
as practicable after the resolution of the related matters an amendment or
supplement to the Registration Statement and shall extend the period during
which such Registration Statement is required to be maintained effective and
usable for resales pursuant to this Agreement by the number of days in the
period from and including the date of the giving of such notice to and including
the date when the Company and the Trust shall have made available to the Holders
(x) copies of the supplemented or amended Prospectus necessary to resume such
dispositions or (y) the Advice.
18
<PAGE>
4. Indemnification and Contribution. (a) In connection with any
--------------------------------
Registration Statement, the Company and the Trust shall, jointly and severally,
indemnify and hold harmless the Initial Purchaser, each Holder, each underwriter
who participates in an offering of the Registrable Securities, each
Participating Broker-Dealer, each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act and each of their respective partners, directors, officers,
employees and agents as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or any
amendment or supplement thereto), covering Registrable Securities or Exchange
Securities, as applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission in the Registration Statement; provided that (subject to
Section 4(d) hereof) any such settlement is effected with the prior written
consent of the Company and the Trust; and
(iii) against any and all expenses whatsoever, as incurred (including the
fees and disbursements of counsel, except to the extent otherwise expressly
provided in Section 4(c) hereof), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is not
paid under subparagraph (i) or (ii) of this Section 4(a);
provided, however, that this indemnity does not apply to any loss, liability,
- -------- -------
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished in writing to the Company or the
Trust by the Initial Purchaser or such Holder, underwriter or Participating
Broker-Dealer for use in a Registration Statement (or any amendment thereto) or
any Prospectus (or any amendment or supplement thereto).
(b) The Initial Purchaser and each Holder, underwriter or
Participating Broker-Dealer agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors and officers (including each officer of
the Company and the Trust who signed the Registration Statement), the Trust,
each of the Trustees and each Person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act against any and all loss, liability, claim, damage and expense whatsoever
described in the indemnity contained in Section 4(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in a Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company or the
Trust by such Holder,
19
<PAGE>
underwriter or Participating Broker-Dealer, as the case maybe, expressly for use
in such Registration Statement (or any amendment thereto), or any such
Prospectus (or any amendment or supplement thereto); provided, however,
-------- -------
that in the case of a Shelf Registration Statement, no such Holder shall be
liable for any claims hereunder in excess of the amount of net proceeds received
by such Holder from the sale of Registrable Securities pursuant to such Shelf
Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have under this Section 4 to the extent that it is not materially
prejudiced by such failure as a result thereof, and in any event shall not
relieve it from liability which it may have otherwise on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 4(a)
or (b) above, counsel to the indemnified parties shall be selected by such
parties. An indemnifying party may participate at its own expense in the defense
of such action; provided, however, that counsel to the indemnifying party shall
-------- -------
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for the
fees and expenses of more than one counsel (in addition to local counsel),
separate from their own counsel, for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 4 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional written release of each indemnified party from all liability
arising out of such litiga tion, investigation, proceeding or claim and (ii)
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have validly requested
an indemnifying party to reimburse the indemnified party for reasonable fees and
expenses of counsel pursuant to Section 4(a), such indemnifying party agrees
that it shall be liable for any settlement of the nature contemplated by Section
4(a)(ii) effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unenforceable by an indemnified party
although applicable in accordance with its terms, the Company, the Trust and the
Holders shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement incurred by
the Company, the Trust and the Holders, as incurred; provided, however, that no
-------- -------
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled
20
<PAGE>
to contribution from any Person that was not guilty of such fraudulent
misrepresentation. As between the Company, the Trust, and the Holders, such
parties shall contribute to such aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement in such
proportion as shall be appropriate to reflect the relative fault of the Company
and Trust, on the one hand, and the Holders, on the other hand, with respect to
the statements or omissions which resulted in such loss, liability, claim,
damage or expense, or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault of the Company and the Trust, on
the one hand, and of the Holders, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Trust, on the one hand, or
by or on behalf of the Holders, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Trust and the Holders of the Registrable
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 4 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the relevant
equitable considerations. For purposes of this Section 4, each Affiliate of a
Holder, and each partner, director, officer, employee and Person, if any, who
controls a Holder or such Affiliate within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Holder, and each director of the Company, each Trustee of
the Trust and each Person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as each of the Company or the Trust.
5. Participation in an Underwritten Registration. No Holder may
---------------------------------------------
participate in an underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Securities on the basis provided in the
underwriting arrangement approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable Securities
-------------------------
covered by the Shelf Registration Statement who desire to do so may sell the
Securities covered by such Shelf Registration in an underwritten offering,
subject to the provisions of Section 3(m) hereof. In any such underwritten
offering, the underwriter or underwriters and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal or liquidation amount, as applicable, of the Registrable
Securities included in such offering; provided, however, that such underwriters
-------- -------
and managers must be reasonably satisfactory to the Company and the Trust.
7. Miscellaneous.
-------------
(a) Rule 144 and Rule 144A. For so long as the Company is subject to
----------------------
the reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Securities remain outstanding, the Company will file the reports
required to be filed by it under the Securities Act and Section 13(a) or 15(d)
of the Exchange Act and the rules and regulations adopted by the SEC thereunder;
provided, however, that if the Company ceases to be so required to file such
- -------- -------
reports, it will, upon the request of any Holder of Registrable Securities (a)
make publicly available such information as is necessary to permit sales of its
securities pursuant to Rule 144 under the Securities Act,
21
<PAGE>
(b) deliver such information to a prospective purchaser as is necessary to
permit sales of its securities pursuant to Rule 144A under the Securities Act
and (c) take such further action that is reasonable in the circumstances, in
each case, to the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such rule may be amended from time to time, (ii) Rule 144A
under the Securities Act, as such rule may be amended from time to time, or
(iii) any similar rules or regulations hereafter adopted by the SEC. Upon the
request of any Holder of Registrable Securities, the Company will deliver to
such Holder a written statement as to whether it has complied with such
requirements.
(b) No Inconsistent Agreements. Neither the Company nor the Trust has
--------------------------
entered into, nor will the Company or the Trust on or after the date of this
Agreement enter into, any agreement which is inconsistent with the rights
granted to the Holders of Registrable Securities in this Agreement or which
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's or the Trust's other issued
and outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company and the Trust have obtained the written
consent of Holders of a majority in aggregate principal or liquidation amount of
the outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or departure; provided that no amendment, modification or
-------- ----
supplement or waiver or consent to the departure with respect to the provisions
of Section 4 hereof shall be effective as against any Holder of Registrable
Securities unless consented to in writing by such Holder of Registrable
Securities. Notwithstanding the foregoing sentence, (i) this Agreement may be
amended, without the consent of any Holder of Registrable Securities, by written
agreement signed by the Company, the Trust and the Initial Purchaser, to cure
any ambiguity, correct or supplement any provision of this Agreement that may be
inconsistent with any other provision of this Agreement or to make any other
provisions with respect to matters or questions arising under this Agreement
which shall not be inconsistent with other provisions of this Agreement, (ii)
this Agreement may be amended, modified or supplemented, and waivers and
consents to departures from the provisions hereof may be given, by written
agreement signed by the Company, the Trust and the Initial Purchaser to the
extent that any such amendment, modification, supplement, waiver or consent is,
in their reasonable judgment, necessary or appropriate to comply with applicable
law (including any interpretation of the Staff of the SEC) or any change therein
and (iii) to the extent any provision of this Agreement relates to the Initial
Purchaser, such provision may be amended, modified or supplemented, and waivers
or consents to departures from such provisions may be given, by written
agreement signed by the Initial Purchaser, the Company and the Trust. Each
Holder of Registrable Securities shall be bound by any amendment or waiver
effected pursuant to this Section 7(c), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such security or is
delivered to such Holder.
22
<PAGE>
(d) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier or any courier guaranteeing overnight delivery (i)
if to a Holder, at the most current address given by such Holder to the Company
or the Trust by means of a notice given in accordance with the provisions of
this Section 7(d), which address initially is, with respect to the Initial
Purchaser, the address set forth in the Purchase Agreement; and (ii) if to the
Company or the Trust, initially at the Company's address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors, assigns and transferees of the Initial
Purchaser, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing herein shall be
-------- -------
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement, the Declaration
or the Indenture. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiaries. Each Holder and any Participating
-------------------------
Broker-Dealer shall be third party beneficiaries of the agreements made
hereunder among the Initial Purchaser, the Company and the Trust, and the
Initial Purchaser shall have the right to enforce such agreements directly to
the extent it deems such enforcement necessary or advisable to protect its
rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN
-------------
THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND
THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE
23
<PAGE>
STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS
OF LAWS. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED
HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
(j) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company, the Trust or its Affiliates.
-----------------------------------------------------------
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Company, the Trust or any Affiliates shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage.
24
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
ASTORIA FINANCIAL CORPORATION
By: /s/ George L. Engelke, Jr.
--------------------------
George L. Engelke, Jr.
Chairman of the Board,
President and Chief Executive Officer
ASTORIA CAPITAL TRUST I
By: ASTORIA FINANCIAL CORPORATION,
as Sponsor
By: /s/ Monte N. Redman
-------------------
Monte N. Redman
Executive Vice President
and Chief Financial Officer
Confirmed and accepted as of
the date first above written:
SANDLER O'NEILL & PARTNERS, L.P.
By: SANDLER O'NEILL & PARTNERS CORP.,
the sole general partner
By: /s/ Catherine A. Lawton
-----------------------
Catherine A. Lawton
Vice President
25
<PAGE>
EXHIBIT 4.12
LIQUIDATED DAMAGES AGREEMENT
THIS LIQUIDATED DAMAGES AGREEMENT (the "Agreement") is made and entered
---------
into as of October 25, 1999 by and among ASTORIA FINANCIAL CORPORATION, a
Delaware corporation (the "Company"), ASTORIA CAPITAL TRUST I, a business trust
-------
formed under the laws of the state of Delaware (the "Trust"), and SANDLER
-----
O'NEILL & PARTNERS, L.P. ("Sandler O'Neill" or the "Initial Purchaser").
--------------- -----------------
WHEREAS, as an inducement to the Initial Purchaser to enter into the
Purchase Agreement, dated October 25, 1999 (the "Purchase Agreement"), by and
------------------
among the Company, the Trust and the Initial Purchaser (providing for, among
other things, the sale by the Trust to the Initial Purchaser of 125,000 of the
Trust's 9.75% Capital Securities, Series A, liquidation amount of $1,000 per
Capital Security (the "Capital Securities"), the proceeds of which will be used
------------------
by the Trust to purchase 9.75% Junior Subordinated Deferrable Interest
Debentures due November 1, 2029, Series A, of the Company (the "Subordinated
------------
Debentures")), and as a condition to the several obligations of the Initial
- ----------
Purchaser thereunder, the Company and the Trust have agreed to provide to the
Initial Purchaser and its direct and indirect transferees certain registration
and related rights pursuant to and in accordance with the terms of the
Registration Rights Agreement, dated the date hereof (the "Registration Rights
-------------------
Agreement"), by and among the Company, the Trust and the Initial Purchaser; and
- ---------
WHEREAS, notwithstanding the fact that the Company and the Trust have
consummated or will consummate an Exchange Offer, pursuant to Section 2(b) of
the Registration Rights Agreement, the Initial Purchaser may, under certain
circumstances, require the Company and the Trust to file a Shelf Registration
Statement for the resale of certain Registrable Securities held by it;
WHEREAS, the Registration Rights Agreement contains certain provisions
concerning the time within which the Company and the Trust must file the Shelf
Registration Statement and the period for which such Shelf Registration
Statement must remain effective and usable for resales; and
WHEREAS, the Company, the Trust and the Initial Purchaser desire to provide
for the payment of liquidated damages by the Company directly to the Initial
Purchaser in the event that the Company and the Trust fail to comply with such
contractual provisions, as more fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Definitions. Capitalized terms used (including in the foregoing
-----------
recitals) but not defined herein shall have the meanings given to such terms in
the Registration Rights Agreement, except that (a) the term "Shelf Registration
Statement" shall refer only to a Shelf Registration Statement filed by the
Company and the Trust pursuant to Section 2(b) of the Registration Rights
Agreement, and (b) the term "Registrable Securities" shall refer only to those
Registrable Securities held at such time by the Initial Purchaser.
<PAGE>
2. Payment of Liquidated Damages. (a) In the event that (i) the Shelf
-----------------------------
Registration Statement is not filed with the SEC on or prior to the 45/th/ day
after a request for such filing is properly made by the Initial Purchaser in
accordance with Section 2(b)(iv) of the Registration Rights Agreement (provided
that in no event shall such date be required to be earlier than 75 days after
the Issue Date), or (ii) the Shelf Registration Statement is not declared
effective by the SEC on or prior to the later of the 40/th/ day after the date
such Shelf Registration Statement was required to be filed pursuant to the terms
of the Registration Rights Agreement and the 180/th/ date after the Issue Date,
or (iii) the Shelf Registration Statement has been declared effective and such
Shelf Registration Statement ceases to be continuously effective or usable for
resales (whether as a result of an event contemplated by Section 3(e) of the
Registration Rights Agreement or otherwise) at any time during the 180-day
period (and any extensions of such period pursuant to the last paragraph of
Section 3 of the Registration Rights Agreement) immediately following the date
on which the Shelf Registration Statement is first declared effective (other
than after such time as all Registrable Securities have been disposed of
thereunder or otherwise cease to be Registrable Securities pursuant to the terms
of the Registration Rights Agreement), then in each case the Company shall pay
liquidated damages to the Initial Purchaser, at a rate of 25 basis points per
annum in respect of the aggregate liquidation amount of Capital Securities held
by the Initial Purchaser or, in the event that the Trust is liquidated and
Subordinated Debentures are distributed to holders of Capital Securities, the
aggregate principal amount of Subordinated Debentures held by the Initial
Purchaser, as the case may be, in respect of the period (x) commencing on the
46/th/ day after such request for the filing of a Shelf Registration Statement
is made by the Initial Purchaser (provided that in no event shall such date be
required to be earlier than 76 days after the Issue Date) and terminating upon
the filing of the Shelf Registration Statement (in the case of clause (i)
above), (y) commencing on the later of the 41/st/ day after the date the Shelf
Registration Statement was required to be filed and the 181/st/ day after the
Issue Date and terminating upon the effectiveness of the Shelf Registration
Statement (in the case of clause (ii) above), or (z) commencing on the day the
Shelf Registration Statement ceases to be effective or usable for resales and
terminating at such time as the Shelf Registration Statement again becomes
effective and usable for resales (in the case of clause (iii) above), provided,
---------
however, that the maximum aggregate amount of liquidated damages payable by the
- -------
Company pursuant to this Agreement and the Registration Rights Agreement shall
not exceed 25 basis points per annum in respect of the aggregate liquidation
amount of the Capital Securities or, in the event the Trust is liquidated and
Subordinated Debentures are distributed to holders of Capital Securities, the
aggregate principal amount of Subordinated Debentures.
(b) Any amounts of liquidated damages payable by the Company pursuant to
this Section 2 shall be paid in cash directly to the Initial Purchaser on the
next succeeding May 1/st/ and November 1/st/, as the case may be, following the
period in respect of which such Liquidated Damages have become due and payable
hereunder.
3. General.
-------
(a) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
<PAGE>
(b) Amendments. This Agreement may be amended by the parties hereto only by
----------
a written instrument duly executed on behalf of each of the parties hereto.
(c) Entire Agreement. This Agreement and the Registration Rights Agreement
----------------
constitute the entire agreement and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof.
(d) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE
-------------
STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE
TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF
THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF
PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH
OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(e) Notices. All notices and other communications hereunder shall be in
-------
writing and shall be deemed given if delivered to the parties at the addresses
set forth in, and in a manner contemplated by, the Registration Rights
Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Liquidated Damages
Agreement as of the date first written above.
ASTORIA FINANCIAL CORPORATION
By: /s/ George L. Engelke, Jr.
--------------------------------------
George L. Engelke, Jr.
Chairman of the Board, President
and Chief Executive Officer
ASTORIA CAPITAL TRUST I
By: ASTORIA FINANCIAL CORPORATION
as Sponsor
By: /s/ Monte N. Redman
--------------------------------------
Monte N. Redman
Executive Vice President
and Chief Financial Officer
SANDLER O'NEILL & PARTNERS, L.P.
By: SANDLER O'NEILL & PARTNERS CORP.,
the sole general partner
By: /s/ Catherine A. Lawton
--------------------------------------
Catherine A. Lawton
Vice President
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF THACHER PROFFITT & WOOD]
Writer's Direct Dial
(212) 912-7815
February 18, 2000
Astoria Capital Trust I
Astoria Financial Corporation
One Astoria Federal Plaza
Lake Success, New York 11042
Re: Astoria Capital Trust I
Registration Statement on Form S-4
----------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Astoria Financial Corporation, a
Delaware corporation (the "Corporation") and Astoria Capital Trust I, a Delaware
statutory business trust (the "Trust"), in connection with the preparation and
filing by the Corporation and the Trust with the Securities and Exchange
Commission (the "Commission") of an exchange offer registration statement (the
"Registration Statement") on Form S-4 under the Securities Act of 1933, as
amended (the "Act"), relating to (i) the issuance of up to 125,000 9.75% Capital
Securities, Series B (liquidation amount of $1,000 per capital security) of the
Trust (the "Exchange Capital Securities"), representing preferred beneficial
interests in the assets of the Trust under the Amended and Restated Declaration
of Trust, dated as of October 28, 1999 (the "Declaration"), by and among the
Corporation, Wilmington Trust Company, as Property Trustee (the "Property
Trustee"), Wilmington Trust Company, as Delaware Trustee (the "Delaware
Trustee"), and the Administrative Trustees named therein, (ii) the issuance of
up to $128,866,000 principal amount of 9.75% Junior Subordinated Deferrable
Interest Debentures due November 1, 2029, Series B (the "Exchange Debentures"),
by the Corporation pursuant to the Indenture, dated as of October 28, 1999 (the
"Indenture"), between the Corporation and Wilmington Trust Company, as Debenture
Trustee and (iii) the Series B Capital Securities Guarantee Agreement, dated as
of February 18, 2000 (the "Exchange Guarantee"), between the Corporation and
Wilmington Trust Company, as Guarantee Trustee (the "Guarantee Trustee"),
relating to the Exchange Capital Securities.
<PAGE>
Page 2
Astoria Financial Corporation
Astoria Capital Trust I
February 18, 2000
This opinion is being furnished in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Act. Capitalized terms used and not
defined herein shall have the respective meanings set forth in the Registration
Statement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the following:
(i) Copy of the Certificate of Incorporation of the Corporation,
certified as of a recent date by the Secretary of State of the State of
Delaware;
(ii) Copy of the Bylaws of the Corporation, certified by the Secretary of
the Corporation to be a true, correct and complete copy;
(iii) Certificate as of a recent date of the Secretary of State of the
State of Delaware certifying as to the good standing of the Corporation
under the laws of the State of Delaware;
(iv) Executed copy of the Certificate of Trust of the Trust filed with
the Secretary of State of the State of Delaware on October 19, 1999;
(v) Certificate as of a recent date of the Secretary of State of the
State of Delaware certifying as to the good standing of the Trust under the laws
of the State of Delaware;
(vi) Copies, certified by the Secretary of the Corporation to be true,
correct and complete copies, of the resolutions duly adopted by the Board of
Directors of the Corporation on October 20, 1999;
(vii) Executed copy of the Written Consent of the Administrative
Trustees dated February 16, 2000;
(viii) Copy of the Registration Statement on Form S-4 filed by the
Corporation and the Trust with the Commission on February 18, 2000 under the
Act;
(ix) Executed copy of the Declaration of Trust, dated as of October 18,
1999, by and between the Corporation and the Delaware Trustee;
(x) Executed copy of the Declaration;
(xi) Form of certificates evidencing the Exchange Capital Securities;
(xii) Executed copy of the Exchange Guarantee;
(xiii) Executed copy of the Indenture;
(xiv) Form of certificate evidencing the Exchange Debentures; and
(xv) Executed copy of the Registration Rights Agreement, dated as of
October 25, 1999
<PAGE>
Page 3.
Astoria Financial Corporation
Astoria Capital Trust I
February 18, 2000
(the "Registration Rights Agreement"), by and among the Corporation, the Trust
and the Initial Purchaser.
We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents, certificates and
records, and we have examined such matters of law, as we have deemed necessary
or appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Corporation and the
Administrative Trustees, we have assumed that such parties had the power,
corporate or other, to enter into and perform all obligations thereunder and
have also assumed the due authorization by all requisite action, corporate or
other, and execution and delivery by such parties of such documents, and the
validity and binding effect and enforceability thereof on such parties. As to
any facts material to the opinions expressed herein which we did not
independently establish or verify, we have relied upon oral or written
statements and representations of the trustees of the Trust, representatives of
the Corporation and others and the accuracy of the facts, information, covenants
and representations set forth in the documents listed above. We have assumed
the accuracy of all statements of fact, and we did not independently establish
or verify the facts, information, covenants and representations set forth in the
documents listed above. We have not, except as specifically identified herein,
been retained or engaged to perform and, accordingly have not performed, any
independent review or investigation of any statutes, ordinances, laws,
regulations, agreements, contracts, instruments, corporate records, orders,
writs, judgments, rules or decrees to which the Corporation or the Trust may be
a party or to which the Corporation or the Trust or any property thereof may be
subject or bound. The opinions expressed below, and all statements herein "to
the best of our knowledge" or "to our attention" are made in the context of the
foregoing. "To the best of our knowledge" or "to our attention" as used herein
means the actual knowledge of our attorneys who have worked on this transaction.
Based upon and subject to the limitations, qualifications, exceptions and
assumptions set forth herein, we are of the opinion that:
1. The Exchange Capital Securities have been duly authorized for issuance
by the Trust and, when the Declaration has been qualified under the Trust
Indenture Act of 1939, as amended, and when the Exchange Capital Securities are
duly issued, executed and authenticated in the manner provided for in the
Declaration and delivered and issued in the exchange offer as contemplated by
the Registration Rights Agreement and the Registration Statement, the Exchange
Capital Securities will be validly issued and, subject to the qualifications set
forth in paragraph 4 below, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust and will entitle the holders thereof to the
benefits of the Declaration.
2. The Exchange Debentures have been duly authorized for issuance by the
Corporation pursuant to the Indenture and, when the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended, and when the Exchange
Debentures are executed, authenticated and delivered in the manner provided for
in the exchange offer as contemplated in the Registration Rights Agreement, the
Exchange Debentures will constitute valid and binding obligations of the
Corporation and will entitle the
<PAGE>
Page 4.
Astoria Financial Corporation
Astoria Capital Trust I
February 18, 2000
holders thereof to the benefits of the Indenture, enforceable against the
Corporation in accordance with their terms, except as rights to indemnity and
contribution thereunder may be limited under applicable law or public policy,
and subject to the qualifications that (i) enforcement thereof may be limited by
bankruptcy, insolvency, receivership, reorganization, liquidation, voidable
preference, moratorium or other laws (including the laws of fraudulent
conveyance and transfer) or judicial decisions affecting the enforcement of
creditors' rights generally or the reorganization of financial institutions and
(ii) the enforceability of the Corporation's obligations thereunder is subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and to the effect of certain
laws and judicial decisions upon the availability and enforceability of certain
remedies, including the remedies of specific performance and self-help.
3. The Exchange Guarantee has been duly authorized by the Corporation
and, when the Exchange Guarantee has been qualified under the Trust Indenture
Act of 1939, as amended, and when the Exchange Guarantee is executed,
authenticated and delivered in the manner provided for in the exchange offer as
contemplated in the Registration Rights Agreement, the Exchange Guarantee will
constitute a valid and binding instrument of the Corporation, enforceable
against the Corporation in accordance with its terms, except as rights to
indemnity and contribution thereunder may be limited under applicable law or
public policy, and subject to the qualifications that (i) enforcement thereof
may be limited by bankruptcy, insolvency, receivership, reorganization,
liquidation, voidable preference, moratorium or other laws (including the laws
of fraudulent conveyance and transfer) or judicial decisions affecting the
enforcement of creditors' rights generally or the reorganization of financial
institutions and (ii) the enforceability of the Corporation's obligations
thereunder is subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law) and to
the effect of certain laws and judicial decisions upon the availability and
enforceability of certain remedies, including the remedies of specific
performance and self-help.
4. The holders of the Exchange Capital Securities are 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; it being understood, however, that the holders of the Exchange
Capital Securities may be obligated, pursuant to the Declaration, to provide (i)
indemnity and/or security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of certificates evidencing such
capital securities ("Capital Security Certificates") and the issuance of
replacement Capital Security Certificates, and (ii) security or indemnity in
connection with requests of or directions to the Property Trustee to exercise
its rights and powers under the Declaration.
In rendering the opinions set forth above, we have not passed upon and do
not purport to pass upon the application of securities or "blue-sky" laws of any
jurisdiction (except federal securities laws).
We are members of the Bar of the State of New York, and we express no
opinion as to the laws of any jurisdiction other than the law of the State of
New York, the corporate law of the State of Delaware, the law of the State of
Delaware concerning the treatment of Delaware business trusts and the federal
law of the United States of America, and we do not express any opinion
concerning the application of the "doing business" laws or the securities laws
of any jurisdiction other than the federal securities laws of the United States
of America. We do not express any opinion on any issue not expressly addressed
above.
<PAGE>
Page 5.
Astoria Financial Corporation
Astoria Capital Trust I
February 18, 2000
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion. This opinion letter is rendered for
the benefit of the Corporation, the Trust and the holders of the Exchange
Capital Securities. Copies of this opinion letter may not be furnished to any
other person, nor may any portion of this opinion letter be quoted, circulated
or referred to in any other document, without our prior written consent.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement, and to the reference to our firm under the heading "Legal Matters" in
the prospectus which is part of the Registration Statement.
Very truly yours,
Thacher Proffitt & Wood
By: /s/ Robert C. Azarow
---------------------
Robert C. Azarow
<PAGE>
EXHIBIT 8.1
[LETTERHEAD OF THACHER PROFFITT & WOOD]
February 18, 2000
Astoria Financial Corporation
One Astoria Federal Plaza
Lake Success, New York 11042
Astoria Capital Trust I
One Astoria Federal Plaza
Lake Success, New York 11042
Re: Registration Statement on Form S-4
----------------------------------
Ladies and Gentlemen:
We have acted as special tax counsel to Astoria Financial Corporation, a
Delaware corporation ("Astoria Financial"), and Astoria Capital Trust I, a
business trust formed under the Business Trust Act of the State of Delaware (the
"Trust"), in connection with the exchange offer registration statement on Form
S-4 (the "Registration Statement") filed with the Securities and Exchange
Commission (the "Commission") for the purpose of (i) registering under the
Securities Act of 1933, as amended (the "Securities Act"), (a) the guarantee by
the Corporation of up to 125,000 of the Trust's 9.75% Capital Securities, Series
B, liquidation amount of $1,000 per capital security (the "Exchange Capital
Securities") with respect to distributions and payments upon liquidation,
redemption and otherwise (the "Exchange Guarantee"), (b) up to $128,866,000
principal amount of 9.75% Junior Subordinated Deferrable Interest Debentures due
November 1, 2029, Series B (the "Exchange Junior Subordinated Debentures")
issued by the Corporation and (c) an aggregate of up to 125,000 9.75% Exchange
Capital Securities (liquidation amount of $1,000 per security) of the Trust, and
(ii) exchanging (such event, the "Exchange") (a) the Exchange Guarantee for the
previously issued guarantee, (b) the Exchange Junior Subordinated Debentures for
the previously issued junior subordinated debentures (the "Original Junior
Subordinated Debentures") and (c) the Exchange Capital Securities for the
previously issued 9.75% Capital Securities, Series A, liquidation amount of
$1,000 per capital security (the "Original Capital Securities"). Capitalized
terms used and not defined herein shall have the respective meanings set forth
in the Registration Statement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the certificate of
trust of the Trust filed with the Secretary of State of the State of Delaware on
October 19, 1999; (ii) the Amended and Restated Declaration of Trust (including
the designations of the terms of the Trust Securities annexed thereto), dated
October 28, 1999
<PAGE>
(the "Declaration"), by and among Astoria Financial, as Sponsor, Wilmington
Trust Company, as Property Trustee and the Delaware Trustee, and Monte N.
Redman, Frank E. Fusco and Thomas E. Lavery (collectively, the "Administrative
Trustees"); (iii) the form of certificates evidencing the Original Capital
Securities and the Exchange Capital Securities and annexed to the Declaration;
(iv) the Registration Rights Agreement, dated October 25, 1999, by and among
Astoria Financial, the Trust and the Initial Purchaser; (v) the Indenture and
the form of certificate evidencing the Original Junior Subordinated Debentures
and the Exchange Junior Subordinated Debentures; and (vi) the Exchange Guarantee
Agreement, by and between Astoria Financial, as guarantor, and Wilmington Trust
Company for the benefit of the holders of the Exchange Capital Securities. We
have also examined originals or copies, certified or otherwise identified to our
satisfaction, of such other documents, certificates and records as we have
deemed necessary or appropriate as a basis for the opinions set forth herein.
In rendering the opinions expressed below, we have participated in the
preparation of the Registration Statement. Our opinion is conditioned on, among
other things, the initial and continuing accuracy of the facts, information,
covenants and representations set forth in the documents referred to above and
the statements and representations made by officers of Astoria Financial and
others. In our 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 or photostatic copies and the
authenticity of the originals of such documents. We also have assumed that the
transactions related to the issuance of the Exchange Capital Securities and the
Exchange Junior Subordinated Debentures will be consummated in the manner
contemplated by the Registration Statement.
In rendering our opinion, we have considered the current provisions of the
Internal Revenue Code of 1986, as amended, Treasury regulations promulgated
thereunder, judicial decisions and Internal Revenue Service rulings, all of
which are subject to change, which changes may be retroactively applied. A
change in the authorities upon which our opinion is based could affect our
conclusions. There can be no assurances, moreover, that any of the opinions
expressed herein will be accepted by the Internal Revenue Service or, if
challenged, by a court.
Based solely upon the foregoing, we are of the opinion that under current
federal income tax law, as of the date hereof:
(i) although the discussion set forth in the Registration Statement under
the heading "CERTAIN FEDERAL INCOME TAX CONSEQUENCES" does not purport
to discuss all possible federal income tax consequences of the
Exchange and the ownership and disposition of the Exchange Capital
Securities or the Exchange Junior Subordinated Debentures, such
discussion constitutes, in all material respects, a fair and accurate
summary under current law of the material federal income tax
consequences of such matters; and
(ii) the Exchange will not be a taxable event to the holders of the
Original Capital Securities for federal income tax purposes.
<PAGE>
For purposes of this letter, we do not express any opinion concerning any
law other than the federal income tax law of the United States. Furthermore,
our opinion is limited solely to the specific questions and conclusions set
forth herein and we express no opinion to any party as to the tax consequences,
whether federal, state, local or foreign, of the issuance of the Exchange Junior
Subordinated Debentures and the Exchange Capital Securities or of any
transaction related to or contemplated by such issuance.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion. This opinion letter is rendered for
the benefit of the Astoria Federal, the Trust and the holders of the Exchange
Capital Securities. Copies of this opinion letter may not be furnished to any
other person, nor may any portion of this opinion letter be quoted, circulated
or referred to in any other document, without our prior written consent.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement, and to the reference to our firm under the heading "Legal Matters" in
the prospectus which is part of the Registration Statement.
Very truly yours,
THACHER PROFFITT & WOOD
By: /s/ Albert J. Cardinali
-----------------------
Albert J. Cardinali
<PAGE>
EXHIBIT 12.1
<TABLE>
<CAPTION>
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
(Excluding Interest on Deposits)
The Corporation's ratios of earnings to fixed charges (excluding interest on
deposits) for the five years ended December 31, 1998 were as follows:
Years Ended December 31,
---------------------------------------------------------
1998 1997 1996 1995 1994
----------- ----------- -------- -------- ---------
(dollars in thousands)
<S> <C> <C> <C> <C> <C>
Income before income taxes, $117,510 $199,724 $123,563 $154,577 $123,490
extraordinary item and cumulative
effect of accounting changes
Income tax expense 61,825 81,840 54,435 65,640 48,926
-------- -------- -------- -------- --------
Income before extraordinary item and 55,685 117,884 69,128 88,937 74,564
cumulative effect of accounting
changes
Extraordinary item, net of tax (10,637) - - - -
Cumulative effect of accounting - - - - 8,648
changes -------- -------- -------- -------- --------
Net income $ 45,048 $117,884 $ 69,128 $ 88,937 $ 83,212
Fixed charges:
Interest on borrowed funds $375,863 $232,048 $154,081 $110,003 $ 44,670
Total fixed charges $375,863 $232,048 $154,081 $110,003 $ 44,670
Earnings (for ratio calculation) $493,373 $431,772 $277,644 $264,580 $168,160
Ratio of earnings to fixed charges 1.31x 1.86x 1.80x 2.41x 3.76x
--------- --------- --------- --------- ---------
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, earnings
represent net income before income taxes plus fixed charges. Fixed charges
excluding interest on deposits consist of interest on all debt and borrowings.
Fixed charges including interest on deposits consist of the foregoing items plus
interest on deposits.
<PAGE>
EXHIBIT 12.2
<TABLE>
<CAPTION>
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
(Including Interest on Deposits)
The Corporation's ratios of earnings to fixed charges (including interest on
deposits) for the five years ended December 31, 1998 were as follows:
Years Ended December 31,
-------------------------------------------------------
1998 1997 1996 1995 1994
----------- --------- -------- ------- -------
(dollars in thousands)
<S> <C> <C> <C> <C> <C>
Income before income taxes, $117,510 $199,724 $123,563 $154,577 $123,490
extraordinary item and cumulative
effect of accounting changes
Income tax expense 61,825 81,840 54,435 65,640 48,926
-------- -------- -------- -------- --------
Income before extraordinary item and 55,685 117,884 69,128 88,937 74,564
cumulative effect of accounting
changes
Extraordinary item, net of tax (10,637) - - - -
Cumulative effect of accounting - - - - 8,648
changes -------- -------- -------- -------- --------
Net income $ 45,048 $117,884 $ 69,128 $ 88,937 $ 83,212
Fixed charges:
Interest on borrowed funds 375,863 232,048 154,081 110,003 44,670
Interest on deposits 399,602 371,543 347,262 323,291 235,632
Total fixed charges 775,465 603,591 501,343 433,294 280,302
Earnings (for ratio calculation) 892,975 803,315 624,906 587,871 403,792
Ratio of earnings to fixed charges 1.15x 1.33x 1.25x 1.36x 1.44x
---------- --------- --------- --------- ---------
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, earnings
represent net income before income taxes plus fixed charges. Fixed charges
excluding interest on deposits consist of interest on all debt and borrowings.
Fixed charges including interest on deposits consist of the foregoing items plus
interest on deposits.
<PAGE>
Exhibit 23.2
[KPMG LLP LETTERHEAD]
Independent Auditors' Consent
The Board of Diretcors
and Stockholders of
Astoria Financial Corporation:
We consent to the incorporation by reference in the Prospectus constituting part
of the registration statement on Form S-4 of Astoria Capital Trust I dated
February 18, 2000 of our report dated January 21, 1999 relating to the
consolidated statements of financial condition of Astoria Financial Corporation
and subsidiaries as of December 31, 1998 and 1997, and the related consolidated
statements of income, changes in stockholders' equity and cash flows for each
of the years in the three-year period ended December 31, 1998, which report is
included in the December 31, 1998 annual report on Form 10-K of Astoria
Financial Corporation.
We also consent to the reference to our firm under the caption "Experts" in such
Registration Statement.
Melville, New York /s/KPMG LLP
February 18, 2000
<PAGE>
EXHIBIT 25.1
Registration No.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) ___
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
ASTORIA CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
Delaware
(State of incorporation) (I.R.S. employer identification no.)
Astoria Financial Corporation
One Astoria Federal Plaza
Lake Success, NY 11042
(Address of principal executive offices) (Zip Code)
$125.0 Million 9.75% Capital Securities, Series B
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to exercise
corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of Trust
Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 18th day
of February, 2000.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ W. Chris Sponenberg By: /s/ Donald G. MacKelcan
------------------------ ------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the Corporation shall require, to make
by-laws not inconsistent with the Constitution or laws of the United
States or of this State, to discount bills, notes or other evidences
of debt, to receive deposits of money, or securities for
<PAGE>
money, to buy gold and silver bullion and foreign coins, to buy and
sell bills of exchange, and generally to use, exercise and enjoy all
the powers, rights, privileges and franchises incident to a
corporation which are proper or necessary for the transaction of the
business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real
or personal, against any claim or claims, adverse to his interest
therein, and to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all fiduciaries, and
from all other persons and individuals, and from all corporations
whether state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons,
for the faithful performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any other person,
or persons, corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment,
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suit, order, or decree to be entered in any court of record within
the State of Delaware or elsewhere, or which may now or hereafter be
required by any law, judge, officer or court in the State of Delaware
or elsewhere.
(9) To act by any and every method of appointment as trustee, trustee
in bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in
the receiving, holding, managing, and disposing of any and all
estates and property, real, personal or mixed, and to be appointed as
such trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian or bailee by any
persons, corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so appointed
by any person, corporation, court, officer or authority such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with surety, but its
capital stock shall be taken and held as security for the performance
of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures,
shares of capital stock, and other securities, obligations, contracts
and evidences of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or of the
Government of the United States, or of any state, territory, colony,
or possession thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest, dividends and
income upon and from any of the bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts,
evidences of indebtedness and other property held and owned by it,
and to exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations, contracts,
evidences of indebtedness and other property, any and all the rights,
powers and privileges of individual owners thereof, including the
right to vote thereon; to invest and deal in and with any of the
moneys of the Corporation upon such securities and in such manner as
it may think fit and proper, and from time to time to vary or realize
such investments; to issue bonds and secure the same by pledges or
deeds of trust or mortgages of or upon the whole or any part of the
property held or owned by the Corporation, and to sell and pledge
such bonds, as and when the Board of Directors shall determine, and
in the promotion of its said corporate business of investment and to
the extent authorized by law, to lease, purchase, hold, sell, assign,
transfer, pledge, mortgage and convey real and personal
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property of any name and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount, execute
and issue promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of, real
and personal property, of every class and description, in any State,
District, Territory or Colony of the United States, and in any
foreign country or place .
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except where
otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes and
powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
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(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and
the preferences and relative, participating, optional and other special
rights of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article Fourth, the Board of
Directors of the Corporation is hereby expressly granted authority to fix
by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights,
and the qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of stock and whether such dividends
shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times
at which, and the terms and conditions on which, Preferred Stock of
such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or
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sale of assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each holder
of Common Stock shall have one vote in respect of each share of
Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but
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<PAGE>
any such unissued stock, additional authorized issue of shares of any
class or series of stock or securities convertible into or exchangeable
for stock, or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution of the Board of Directors to such
persons, firms, corporations or associations, whether such holders or
others, and upon such terms as may be deemed advisable by the Board of
Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board
of Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
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(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such
election, the stockholders shall elect a successor to such director to
hold office until the next election of the class for which such director
shall have been chosen and until his successor shall be elected and
qualified. No decrease in the number of directors shall shorten the term
of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any
time without cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to
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the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agents and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this purpose
as one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of
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Delaware at such places as may be from time to time designated by them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary 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 of $1,000,000 or more,
or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article Fifteenth
shall mean any transaction which is referred to in any one or more of
clauses (A) through (E) of paragraph 1 of the section (a).
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(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation or By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on such business combination, or
immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities
Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
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(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect on
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis
of information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value
of $1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely
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affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each share of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by
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the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or divisions of the Company as it may deem
advisable.
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board of
Directors when it is not in session to transact all business for and in behalf
of the Company that may be brought before it.
16
<PAGE>
(C) The Executive Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
17
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the Trust
Department and the investment of trust funds, in all matters, however, being
subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept
and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the Audit
Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the majority
of its members shall deem it to be proper for the transaction of its business,
and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
18
<PAGE>
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any Committee
created under Article III of the By-Laws of this Company, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
-------------------------------
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of
19
<PAGE>
the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors. In the absence of the Chairman of the Board
the President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
20
<PAGE>
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of
stock shall be issued only upon giving such security as may be satisfactory to
the Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
21
<PAGE>
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
22
<PAGE>
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
-------- -------
payment of expenses incurred by a Director or officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under this
Article X is not paid in full within ninety days after a written claim therefor
has been received by the Corporation the claimant may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim. In any such action
the Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this Article X shall not be
exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these By-
Laws, agreement, vote of stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of
23
<PAGE>
Directors by a vote of the majority of all the members of the Board of Directors
then in office.
24
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 18, 2000 By: /s/ Donald G. MacKelcan
-------------------------
Name: Donald G. MacKelcan
Title: Vice President
25
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- -------------------------------------------- --------------------
Name of Bank
City
in the State of DELAWARE, at the close of business on September 30, 1999.
--------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins....................... 182,666
Interest-bearing balances................................................. 0
Held-to-maturity securities..................................................... 34,128
Available-for-sale securities...................................................1,644,067
Federal funds sold and securities purchased under agreements to resell.......... 259,962
Loans and lease financing receivables:
Loans and leases, net of unearned income..............4,251,934
LESS: Allowance for loan and lease losses............ 71,014
LESS: Allocated transfer risk reserve................ 0
Loans and leases, net of unearned income, allowance, and reserve..........4,180,920
Assets held in trading accounts................................................. 0
Premises and fixed assets (including capitalized leases)........................ 138,196
Other real estate owned......................................................... 976
Investments in unconsolidated subsidiaries and associated companies............. 1,452
Customers' liability to this bank on acceptances outstanding.................... 0
Intangible assets............................................................... 5,092
Other assets.................................................................... 142,444
Total assets....................................................................6,589,903
</TABLE>
CONTINUED ON NEXT PAGE
26
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices.......................................................... 4,886,770
Noninterest-bearing........................ 1,084,581
Interest-bearing........................... 3,802,189
Federal funds purchased and Securities sold under agreements to repurchase... 387,343
Demand notes issued to the U.S. Treasury..................................... 69,491
Trading liabilities (from Schedule RC-D)..................................... 0
Other borrowed money:........................................................ ///////
With original maturity of one year or less............................. 655,000
With original maturity of more than one year........................... 43,000
Bank's liability on acceptances executed and outstanding..................... 0
Subordinated notes and debentures............................................ 0
Other liabilities (from Schedule RC-G)....................................... 84,722
Total liabilities............................................................ 6,126,326
<CAPTION>
EQUITY CAPITAL
<S> <C>
Perpetual preferred stock and related surplus................................ 0
Common Stock................................................................. 500
Surplus (exclude all surplus related to preferred stock)..................... 62,118
Undivided profits and capital reserves....................................... 417,321
Net unrealized holding gains (losses) on available-for-sale securities....... (16,362)
Total equity capital......................................................... 463,577
Total liabilities, limited-life preferred stock, and equity capital.......... 6,589,903
</TABLE>
27
<PAGE>
EXHIBIT 25.2
Registration No.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) ___
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
ASTORIA FINANCIAL CORPORATION
(Exact name of obligor as specified in its charter)
(State of incorporation) (I.R.S. employer identification no.)
Astoria Financial Corporation
One Astoria Federal Plaza
Lake Success, NY 11042
(Address of principal executive offices) (Zip Code)
$125.0 Million of 9.75% Junior Subordinated Debentures, Series B
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not
an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of Wilmington
Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Wilmington Trust Company, a corporation organized and existing under
the laws of Delaware, has duly caused this Statement of Eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in the City of
Wilmington and State of Delaware on the ______ day of February, 2000.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ W. Chris Sponenberg By: /s/ Donald G. MacKelcan
------------------------ ------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive deposits
of money, or securities for money, to buy gold and silver bullion and
foreign coins, to buy and sell bills of exchange, and generally to
use, exercise and enjoy all the powers, rights, privileges and
franchises incident to a corporation which are proper or necessary
for the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real
or personal, against any claim or claims, adverse to his interest
therein, and to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all fiduciaries, and
from all other persons and individuals, and from all corporations
whether state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons,
for the faithful performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any other person,
or persons, corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment, suit,
order, or decree to be entered in any court of record within the
State of Delaware or elsewhere, or which may now or hereafter be
required by any law, judge, officer or court in the State of Delaware
or elsewhere.
(9) To act by any and every method of appointment as trustee, trustee
in bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in
the receiving, holding, managing, and disposing of any and all
estates and property, real, personal or mixed, and to be appointed as
such trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian or bailee by any
persons, corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so appointed
by any person, corporation, court, officer or authority such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with surety, but its
capital stock shall be taken and held as security for the performance
of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures,
shares of capital stock, and other securities, obligations, contracts
and evidences of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or of the
Government of the United States, or of any state, territory, colony,
or possession thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest, dividends and
income upon and from any of the bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts,
evidences of indebtedness and other property held and owned by it,
and to exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations, contracts,
evidences of indebtedness and other property, any and all the rights,
powers and privileges of individual
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owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue bonds
and secure the same by pledges or deeds of trust or mortgages of or
upon the whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when the Board
of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by law,
to lease, purchase, hold, sell, assign, transfer, pledge, mortgage
and convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount, execute
and issue promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of, real
and personal property, of every class and description, in any State,
District, Territory or Colony of the United States, and in any
foreign country or place .
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(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except where
otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes and
powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and
the preferences and relative, participating, optional and other special
rights of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article Fourth, the Board of
Directors of the Corporation is hereby expressly granted authority to fix
by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights,
and the qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on
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<PAGE>
any other class or classes, or series of the same or other class of
stock and whether such dividends shall be cumulative or non-
cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times
at which, and the terms and conditions on which, Preferred Stock of
such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to
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receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each holder
of Common Stock shall have one vote in respect of each share of
Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock
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may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board
of Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such
election, the stockholders shall elect a successor to such director to
hold office until the next election of the class for which such director
shall have been chosen and until his successor shall be elected and
qualified. No decrease in the number of directors shall shorten the term
of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any
time without cause, but only by the affirmative
8
<PAGE>
vote of the holders of two-thirds or more of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agents and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
9
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Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this purpose
as one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
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(C) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary 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 of $1,000,000 or more,
or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to in
any one or more of clauses (A) through (E) of paragraph 1 of
the section (a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation or By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on such
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business combination, or immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities
Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
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<PAGE>
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect on
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis
of information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value
of $1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each share of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or
<PAGE>
at the call of the Chairman of the Board of Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or divisions of the Company as it may deem
advisable.
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
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<PAGE>
members who shall be selected by the Board of Directors from its own members and
who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board of
Directors when it is not in session to transact all business for and in behalf
of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the Trust
Department and the investment of trust funds, in all matters, however, being
subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept
and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the Audit
Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the majority
of its members shall deem it to be proper for the transaction of its business,
and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any Committee
created under Article III of the By-Laws of this Company, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
-------------------------------
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors. In the absence of the Chairman of the Board
the President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of
stock shall be issued only upon giving such security as may be satisfactory to
the Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any
7
<PAGE>
dividend, or to any allotment or rights, or to exercise any rights in respect of
any change, conversion or exchange of capital stock, or in connection with
obtaining the consent of stockholders for any purpose, which record date shall
not be more than 60 nor less than 10 days proceeding the date of any meeting of
stockholders or the date for the payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with obtaining such
consent.
8
<PAGE>
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
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<PAGE>
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
-------- -------
payment of expenses incurred by a Director or officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under this
Article X is not paid in full within ninety days after a written claim therefor
has been received by the Corporation the claimant may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim. In any such action
the Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this Article X shall not be
exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these By-
Laws, agreement, vote of stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
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<PAGE>
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
11
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, Wilmington
Trust Company hereby consents that reports of examinations by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 18, 2000 By: /s/ Donald G. MacKelcan
-------------------------
Name: Donald G. MacKelcan
Title: Vice President
12
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- -------------------------------------------- --------------
Name of Bank City
in the State of DELAWARE, at the close of business on September 30, 1999.
--------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
<S> <C>
Noninterest-bearing balances and currency and coins................ 182,666
Interest-bearing balances.......................................... 0
Held-to-maturity securities.............................................. 34,128
Available-for-sale securities............................................ 1,644,067
Federal funds sold and securities purchased under agreements to resell... 259,962
Loans and lease financing receivables:
Loans and leases, net of unearned income........... 4,251,934
LESS: Allowance for loan and lease losses......... 71,014
LESS: Allocated transfer risk reserve............. 0
Loans and leases, net of unearned income, allowance, and reserve... 4,180,920
Assets held in trading accounts.......................................... 0
Premises and fixed assets (including capitalized leases)................. 138,196
Other real estate owned.................................................. 976
Investments in unconsolidated subsidiaries and associated companies...... 1,452
Customers' liability to this bank on acceptances outstanding............. 0
Intangible assets........................................................ 5,092
Other assets............................................................. 142,444
Total assets............................................................. 6,589,903
</TABLE>
CONTINUED ON NEXT PAGE
13
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices.......................................................... 4,886,770
Noninterest-bearing......................... 1,084,581
Interest-bearing............................ 3,802,189
Federal funds purchased and Securities sold under agreements to repurchase... 387,343
Demand notes issued to the U.S. Treasury..................................... 69,491
Trading liabilities (from Schedule RC-D)..................................... 0
Other borrowed money:........................................................ ///////
With original maturity of one year or less............................. 655,000
With original maturity of more than one year........................... 43,000
Bank's liability on acceptances executed and outstanding..................... 0
Subordinated notes and debentures............................................ 0
Other liabilities (from Schedule RC-G)....................................... 84,722
Total liabilities............................................................ 6,126,326
<CAPTION>
EQUITY CAPITAL
<S> <C>
Perpetual preferred stock and related surplus................................. 0
Common Stock.................................................................. 500
Surplus (exclude all surplus related to preferred stock)...................... 62,118
Undivided profits and capital reserves........................................ 417,321
Net unrealized holding gains (losses) on available-for-sale securities........ (16,362)
Total equity capital.......................................................... 463,577
Total liabilities, limited-life preferred stock, and equity capital...........6,589,903
</TABLE>
14
<PAGE>
EXHIBIT 25.3
Registration No.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) ___
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
ASTORIA FINANCIAL CORPORATION
(Exact name of obligor as specified in its charter)
(State of incorporation) (I.R.S. employer identification no.)
Astoria Financial Corporation
One Astoria Federal Plaza
Lake Success, NY 11042
(Address of principal executive offices) (Zip Code)
Series B Capital Securities Guarantee
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not
an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of Wilmington
Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Wilmington Trust Company, a corporation organized and existing under
the laws of Delaware, has duly caused this Statement of Eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in the City of
Wilmington and State of Delaware on the ______ day of February, 2000.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ W. Chris Sponenberg By: /s/ Donald G. MacKelcan
-------------------------- ------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the Corporation shall require, to make
by-laws not inconsistent with the Constitution or laws of the United
States
<PAGE>
or of this State, to discount bills, notes or other evidences
of debt, to receive deposits of money, or securities for money, to
buy gold and silver bullion and foreign coins, to buy and sell bills
of exchange, and generally to use, exercise and enjoy all the powers,
rights, privileges and franchises incident to a corporation which are
proper or necessary for the transaction of the business of the
Corporation hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real
or personal, against any claim or claims, adverse to his interest
therein, and to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all fiduciaries, and
from all other persons and individuals, and from all corporations
whether state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons,
for the faithful performance of any trust, office,
2
<PAGE>
duty, contract or agreement, either by itself or in conjunction with
any other person, or persons, corporation, or corporations, or in
like manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of record
within the State of Delaware or elsewhere, or which may now or
hereafter be required by any law, judge, officer or court in the
State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee, trustee
in bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in
the receiving, holding, managing, and disposing of any and all
estates and property, real, personal or mixed, and to be appointed as
such trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian or bailee by any
persons, corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so appointed
by any person, corporation, court, officer or authority such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with surety, but its
capital stock shall be taken and held as security for the performance
of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures,
shares of capital stock, and other securities, obligations, contracts
and evidences of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or of the
Government of the United States, or of any state, territory, colony,
or possession thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest, dividends and
income upon and from any of the bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts,
evidences of indebtedness and other property held and owned by it,
and to exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations, contracts,
evidences of indebtedness and other property, any and all the rights,
powers and privileges of individual owners thereof, including the
right to vote thereon; to invest and deal in and with any of the
moneys of the Corporation upon such securities and in such manner as
it may think fit and proper, and from time to time to vary or realize
such investments; to issue bonds and secure the same by pledges or
deeds of trust or mortgages of or upon the whole or any part of the
property held or owned by the Corporation, and to sell and pledge
such bonds, as and when
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the Board of Directors shall determine, and in the promotion of its
said corporate business of investment and to the extent authorized by
law, to lease, purchase, hold, sell, assign, transfer, pledge,
mortgage and convey real and personal property of any name and nature
and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount, execute
and issue promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of, real
and personal property, of every class and description, in any State,
District, Territory or Colony of the United States, and in any
foreign country or place .
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except where
otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes and
powers.
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Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and
the preferences and relative, participating, optional and other special
rights of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article Fourth, the Board of
Directors of the Corporation is hereby expressly granted authority to fix
by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights,
and the qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of stock and whether such dividends
shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
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(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times
at which, and the terms and conditions on which, Preferred Stock of
such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each holder
of Common Stock shall have one vote in respect of each share of
Common Stock held on all matters voted upon by the stockholders.
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(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board
of Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote thereon.
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<PAGE>
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such
election, the stockholders shall elect a successor to such director to
hold office until the next election of the class for which such director
shall have been chosen and until his successor shall be elected and
qualified. No decrease in the number of directors shall shorten the term
of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any
time without cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which
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<PAGE>
are proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agents and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
9
<PAGE>
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this purpose
as one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary 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 of $1,000,000 or more,
or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any
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Subsidiary which is directly or indirectly owned by any Interested
Stockholder, or any Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to in
any one or more of clauses (A) through (E) of paragraph 1 of
the section (a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation or By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on such business combination, or
immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities
Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
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(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect on
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis
of information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value
of $1,000,000 or more.
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(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each share of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
<PAGE>
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or divisions of the Company as it may deem
advisable.
ARTICLE III
Committees
Section 1. Executive Committee
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(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board of
Directors when it is not in session to transact all business for and in behalf
of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the Trust
Department and the investment of trust funds, in all matters, however, being
subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept
and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the Audit
Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the majority
of its members shall deem it to be proper for the transaction of its business,
and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
4
<PAGE>
(A) The Compensation Committee shall be composed of not more than
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any Committee
created under Article III of the By-Laws of this Company, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
5
<PAGE>
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
-------------------------------
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors. In the absence of the Chairman of the Board
the President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of
stock shall be issued only upon giving such security as may be satisfactory to
the Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any
7
<PAGE>
dividend, or to any allotment or rights, or to exercise any rights in respect of
any change, conversion or exchange of capital stock, or in connection with
obtaining the consent of stockholders for any purpose, which record date shall
not be more than 60 nor less than 10 days proceeding the date of any meeting of
stockholders or the date for the payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with obtaining such
consent.
8
<PAGE>
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from
9
<PAGE>
time to time determine and shall be paid for such special services so performed
reasonable compensation as may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
-------- -------
payment of expenses incurred by a Director or officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under this
Article X is not paid in full within ninety days after a written claim therefor
has been received by the Corporation the claimant may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim. In any such action
the Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this Article X shall not be
exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these By-
Laws, agreement, vote of stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
10
<PAGE>
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
11
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, Wilmington
Trust Company hereby consents that reports of examinations by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 18, 2000 By: /s/ Donald G. MacKelcan
-------------------------
Name: Donald G. MacKelcan
Title: Vice President
12
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T OF C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- -------------------------------------------- -----------
Name of Bank City
in the State of DELAWARE, at the close of business on September 30, 1999.
--------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
<S> <C>
Noninterest-bearing balances and currency and coins................ 182,666
Interest-bearing balances.......................................... 0
Held-to-maturity securities.............................................. 34,128
Available-for-sale securities............................................ 1,644,067
Federal funds sold and securities purchased under agreements to resell... 259,962
Loans and lease financing receivables:
Loans and leases, net of unearned income...........4,251,934
LESS: Allowance for loan and lease losses......... 71,014
LESS: Allocated transfer risk reserve............. 0
Loans and leases, net of unearned income, allowance, and reserve... 4,180,920
Assets held in trading accounts.......................................... 0
Premises and fixed assets (including capitalized leases)................. 138,196
Other real estate owned.................................................. 976
Investments in unconsolidated subsidiaries and associated companies...... 1,452
Customers' liability to this bank on acceptances outstanding............. 0
Intangible assets........................................................ 5,092
Other assets............................................................. 142,444
Total assets............................................................. 6,589,903
</TABLE>
CONTINUED ON NEXT PAGE
13
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
Deposits:
<S> <C>
In domestic offices.......................................................... 4,886,770
Noninterest-bearing.............................1,084,581
Interest-bearing................................3,802,189
Federal funds purchased and Securities sold under agreements to repurchase... 387,343
Demand notes issued to the U.S. Treasury..................................... 69,491
Trading liabilities (from Schedule RC-D)..................................... 0
Other borrowed money:........................................................ ///////
With original maturity of one year or less............................. 655,000
With original maturity of more than one year........................... 43,000
Bank's liability on acceptances executed and outstanding..................... 0
Subordinated notes and debentures............................................ 0
Other liabilities (from Schedule RC-G)....................................... 84,722
Total liabilities............................................................ 6,126,326
<CAPTION>
EQUITY CAPITAL
<S> <C>
Perpetual preferred stock and related surplus................................ 0
Common Stock................................................................. 500
Surplus (exclude all surplus related to preferred stock)..................... 62,118
Undivided profits and capital reserves....................................... 417,321
Net unrealized holding gains (losses) on available-for-sale securities....... (16,362)
Total equity capital......................................................... 463,577
Total liabilities, limited-life preferred stock, and equity capital.......... 6,589,903
</TABLE>
14
<PAGE>
EXHIBIT 99.1
LETTER OF TRANSMITTAL
ASTORIA CAPITAL TRUST I
OFFER TO EXCHANGE ITS
9.75% CAPITAL SECURITIES, SERIES B
("EXCHANGE CAPITAL SECURITIES")
(LIQUIDATION AMOUNT $1,000 PER EXCHANGE CAPITAL SECURITY)
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING
9.75% CAPITAL SECURITIES, SERIES A
("ORIGINAL CAPITAL SECURITIES")
(LIQUIDATION AMOUNT $1,000 PER ORIGINAL CAPITAL SECURITY)
UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN,
BY
ASTORIA FINANCIAL CORPORATION
PURSUANT TO THE PROSPECTUS DATED ______________, 2000
(AS THE SAME MAY BE AMENDED OR SUPPLEMENTED, THE "PROSPECTUS")
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL
EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ______________, 2000,
OR ON SUCH LATER DATE OR TIME TO WHICH THE TRUST MAY
EXTEND THE EXCHANGE OFFER (THE "EXPIRATION DATE").
TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M.,
NEW YORK CITY TIME, ON THE EXPIRATION DATE.
The Exchange Agent For The Exchange Offer Is:
WILMINGTON TRUST COMPANY,
as Property Trustee of Astoria Capital Trust I
<TABLE>
<CAPTION>
<S> <C> <C>
Facsimile Transmission Number: By Hand, Overnight Delivery, Confirm by Telephone:
(302) 651-1079 Courier or Certified Mail: (302) 651-8474
Wilmington Trust Company,
as Exchange Agent
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust
Operations -
Astoria Capital Trust I Exchange
Offer
</TABLE>
For Information:
(302) 651-8474
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE
THIS LETTER OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein shall have the same
meaning given them in the Prospectus. As used herein, the term "Holder" means a
holder of Original Capital Securities, including any participant ("DTC
Participant") in the book-entry transfer facility system of The Depository Trust
Company ("DTC") whose name appears on a security position listing as the owner
of the Original Capital Securities. As used herein, the term "Certificates"
means physical certificates representing Original Capital Securities.
To participate in the Exchange Offer (as defined below), Holders must
tender by (a) book-entry transfer pursuant to the procedures set forth in the
Prospectus under "The Exchange Offer--Procedures for Tendering Original Capital
Securities," or (b) forwarding Certificates herewith. Holders who are DTC
Participants tendering by book-entry transfer must execute such tender through
the Automated Tender Offer Program ("ATOP") of DTC. A Holder using ATOP should
transmit its acceptance to DTC on or prior to the Expiration Date. DTC will
verify such acceptance, execute a book-entry transfer of the tendered Original
Capital Securities into the Exchange Agent's account at DTC and then send to the
Exchange Agent confirmation of such book-entry transfer (a "Book-Entry
Confirmation"), including an agent's message ("Agent's Message") confirming that
DTC has received an express acknowledgement from such Holder that such Holder
has received and agrees to be bound by this Letter of Transmittal and that the
Trust and the Corporation may enforce this Letter of Transmittal against such
Holder. The Book-Entry Confirmation must be received by the Exchange Agent in
order for the tender relating thereto to be effective. Book-entry transfer to
DTC in accordance with DTC's procedures does not constitute delivery of the
Book-Entry Confirmation to the Exchange Agent.
If the tender is not made through ATOP, then Certificates, as well as
this Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees, and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
at its address set forth herein on or prior to the Expiration Date in order for
such tender to be effective.
Holders of Original Capital Securities who cannot complete the
procedures for delivery by book-entry transfer of such Original Capital
Securities on a timely basis or who cannot deliver their Certificates for such
Original Capital Securities and all other required documents to the Exchange
Agent on or prior to the Expiration Date, must, in order to participate in the
Exchange Offer, tender their Original Capital Securities according to the
guaranteed delivery procedures set forth in the Prospectus under "The Exchange
Offer -- Procedures for Tendering Original Capital Securities."
THE METHOD OF DELIVERY OF THE BOOK-ENTRY CONFIRMATION OR CERTIFICATES,
THIS LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND
SOLE RISK OF THE TENDERING HOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN
ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, WE RECOMMEND
USING REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED OR
OVERNIGHT DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
2
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
ALL TENDERING HOLDERS COMPLETE THIS BOX:
DESCRIPTION OF ORIGINAL CAPITAL SECURITIES TENDERED
(SEE INSTRUCTION 4)
<TABLE>
<CAPTION>
<S> <C> <C>
- ------------------------------------------------------------------------------------------
NAME EXACTLY AS IT APPEARS ON ORIGINAL CAPITAL
YOUR STOCK CERTIFICATE(S) AND SECURITIES TENDERED
ADDRESS OF REGISTERED HOLDER (Please list below-- attach
(Please fill in, if blank) additional list if necessary)
- -------------------------------------- ---------------------------------------------------
Certificate Aggregate Liquidation Amount of
Number(s)* Liquidation Amount Original Capital
of Original Capital Securities Tendered
Securities (If Less Than All)**
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
Total Amount Tendered:
==========================================================================================
</TABLE>
- -------------------------------------------------------------------------------
* Need not be completed by book-entry holders.
** Original Capital Securities may be tendered in whole or in part in
denominations of $100,000 and integral multiples of $1,000 in excess
thereof, provided that if any Original Capital Securities are tendered for
exchange in part, the untendered principal amount thereof must be $100,000
or any integral multiple of $1,000 in excess thereof. All Original Capital
Securities held shall be deemed tendered unless a lesser number is
specified in this column. See Instruction 4.
- -------------------------------------------------------------------------------
BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY
|_| CHECK HERE IF TENDERED ORIGINAL CAPITAL SECURITIES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT
WITH DTC, AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
----------------------------------------------
DTC Account Number:
--------------------------------------------------------
Transaction Code Number:
---------------------------------------------------
|_| CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED ORIGINAL CAPITAL SECURITIES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT, AND
COMPLETE THE FOLLOWING:
3
<PAGE>
Name of Registered Holder(s):
----------------------------------------------
Window Ticket Number (if any):
---------------------------------------------
Date of Execution of Notice of Guaranteed Delivery:
------------------------
Name of Institution which Guaranteed Delivery:
-----------------------------
If Guaranteed Delivery is to be made By Book-Entry Transfer:
Name of Tendering Institution
-----------------------------------------
DTC Account Number
-----------------------------------------------------
Transaction Code Number
-------------------------------------------------
|_| CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE ORIGINAL CAPITAL
SECURITIES FOR YOUR OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER
TRADING ACTIVITIES AND WISH TO RECEIVE TEN ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
----------------------------------------------------------------------
Address:
-------------------------------------------------------------------
Area Code and Telephone Number:
--------------------------------------------
Contact Person:
------------------------------------------------------------
|_| CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NONEXCHANGED OR
NONTENDERED ORIGINAL CAPITAL SECURITIES ARE TO BE RETURNED BY CREDITING THE
DTC ACCOUNT NUMBER SET FORTH ABOVE.
Ladies and Gentlemen:
The undersigned hereby tenders to Astoria Capital Trust I, a trust formed
under the laws of the State of Delaware (the "Trust"), and Astoria Financial
Corporation, a Delaware corporation (the "Corpora tion"), the above-described
aggregate Liquidation Amount of the Trust's Original Capital Securities in
exchange for a like aggregate Liquidation Amount of the Trust's Exchange Capital
Securities which have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), upon the terms and subject to the conditions set
forth in the Prospectus, receipt of which is hereby acknowledged, and in this
Letter of Transmittal (which, together with the Prospectus, constitute the
"Exchange Offer").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Original Capital Securities tendered herewith in accordance with
the terms and conditions of the Exchange Offer (including, if the Exchange Offer
is extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Trust all right, title and interest in and to such Original Capital
Securities as are being tendered herewith. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as agent of the
Corporation and the Trust in connection with the Exchange Offer) with respect to
the tendered Original Capital Securities, with full power of substitution (such
power of attorney being deemed to be an irrevocable power coupled with an
interest) subject only to the right of withdrawal described in the Prospectus,
to (i) deliver Certificates for Original Capital Securities to the Corporation
or the Trust together with all
4
<PAGE>
accompanying evidences of transfer and authenticity to the Trust, upon receipt
by the Exchange Agent, as the undersigned's agent, of the Exchange Capital
Securities to be issued in exchange for such Original Capital Securities, (ii)
present Certificates for such Original Capital Securities for transfer, and to
transfer the Original Capital Securities on the books of the Trust, and (iii)
receive for the account of the Trust all benefits and otherwise exercise all
rights of beneficial ownership of such Original Capital Securities, all in
accordance with the terms and conditions of the Exchange Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS FULL
POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE ORIGINAL
CAPITAL SECURITIES TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED FOR
EXCHANGE, THE TRUST WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE
THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES,
AND THAT THE ORIGINAL CAPITAL SECURITIES TENDERED HEREBY ARE NOT SUBJECT TO ANY
ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND
DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY THE TRUST OR THE EXCHANGE AGENT TO BE
NECESSARY OR DESIRABLE TO COMPLETE THE EXCHANGE, ASSIGNMENT AND TRANSFER OF THE
ORIGINAL CAPITAL SECURITIES TENDERED HEREBY, AND THE UNDERSIGNED WILL COMPLY
WITH ITS OBLIGATIONS UNDER THE REGISTRATION AGREEMENT. THE UNDERSIGNED HAS READ
AND AGREES TO ALL OF THE TERMS OF THE EXCHANGE OFFER.
The name(s) and address(es) of the registered Holder(s) of the Original
Capital Securities tendered hereby should be printed in the box entitled
"Description of Original Capital Securities" above, if they are not already set
forth in such box, as they appear on the Certificates representing such Original
Capital Securities or on the records of DTC, as the case may be. The Certificate
number(s) of any such Certificates and the liquidation amount of such Original
Capital Securities should be specified in such box as indicated above.
The undersigned understands that tenders of Original Capital Securities
pursuant to any one of the procedures described in "The Exchange
Offer--Procedures for Tendering Original Capital Securities" in the Prospectus
and in the instructions attached hereto will, upon the Corporation's and the
Trust's acceptance for exchange of such tendered Original Capital Securities,
constitute a binding agreement between the undersigned, the Corporation and the
Trust upon the terms and subject to the conditions of the Exchange Offer.
The undersigned recognizes that, under certain circumstances set forth in
the Prospectus, the Corporation and the Trust may not be required to accept for
exchange any of the Original Capital Securities tendered hereby.
Unless otherwise indicated in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the Exchange Capital
Securities be issued in the name(s) of the undersigned or credited to the
account at DTC indicated above in the case of a book-entry transfer of Original
Capital Securities.
If any Original Capital Securities are submitted for more Original Capital
Securities than are tendered or accepted for exchange, then, without expense to
the tendering Holder, promptly following the expiration or termination of the
Exchange Offer, such non-exchanged or non-tendered Original Capital Securities
will, if evidenced by Certificates, be returned, or will, if evidenced by
book-entry, be credited to the account at DTC indicated above. If applicable,
substitute Certificates representing non-exchanged Original Capital Securities
will be issued to the undersigned or non-exchanged Original Capital
5
<PAGE>
Securities will be credited to the account at DTC indicated above in the case of
a book-entry transfer of Original Capital Securities.
Unless otherwise indicated under "Special Delivery Instructions,"
certificates for Original Capital Securities and for Exchange Capital Securities
will be delivered to the undersigned at the address shown below the
undersigned's signature.
BY TENDERING ORIGINAL CAPITAL SECURITIES AND EXECUTING THIS LETTER OF
TRANSMITTAL, THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (1) THE
UNDERSIGNED IS NOT AN "AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE SECURITIES
ACT) OF THE CORPORATION OR THE TRUST, (2) ANY EXCHANGE CAPITAL SECURITIES TO BE
RECEIVED BY THE UNDERSIGNED ARE BEING ACQUIRED IN THE ORDINARY COURSE OF ITS
BUSINESS, (3) THE UNDERSIGNED HAS NO ARRANGEMENT OR UNDERSTANDING WITH ANY
PERSON TO PARTICIPATE IN A DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES
ACT) OF EXCHANGE CAPITAL SECURITIES TO BE RECEIVED IN THE EXCHANGE OFFER, AND
(4) IF THE UNDERSIGNED IS NOT A BROKER-DEALER, THE UNDERSIGNED IS NOT ENGAGED
IN, AND DOES NOT INTEND TO ENGAGE IN, A DISTRIBUTION (WITHIN THE MEANING OF THE
SECURITIES ACT) OF SUCH EXCHANGE CAPITAL SECURITIES. BY TENDERING ORIGINAL
CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER AND EXECUTING THIS LETTER OF
TRANSMITTAL, A HOLDER OF ORIGINAL CAPITAL SECURITIES THAT IS A BROKER-DEALER
REPRESENTS AND AGREES, CONSISTENT WITH CERTAIN INTERPRETIVE LETTERS ISSUED BY
THE STAFF OF THE DIVISION OF CORPORATION FINANCE OF THE SECURITIES AND EXCHANGE
COMMISSION TO THIRD PARTIES, THAT (A) SUCH ORIGINAL CAPITAL SECURITIES ARE HELD
BY SUCH BROKER-DEALER ONLY AS A NOMINEE, OR (B) SUCH ORIGINAL CAPITAL SECURITIES
WERE ACQUIRED BY IT FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES
OR OTHER TRADING ACTIVITIES AND IT WILL DELIVER THE PROSPECTUS MEETING THE
REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH ANY RESALE OF SUCH
EXCHANGE CAPITAL SECURITIES (PROVIDED THAT, BY SO ACKNOWLEDGING AND BY
DELIVERING THE PROSPECTUS, IT WILL NOT BE DEEMED TO ADMIT THAT IT IS AN
"UNDERWRITER" WITHIN THE MEANING OF THE SECURITIES ACT).
THE CORPORATION AND THE TRUST HAVE AGREED THAT, SUBJECT TO THE PROVI SIONS
OF THE REGISTRATION RIGHTS AGREEMENT, THE PROSPECTUS MAY BE USED IN CONNECTION
WITH RESALES OF EXCHANGE CAPITAL SECURITIES RECEIVED IN EXCHANGE FOR ORIGINAL
CAPITAL SECURITIES BY A BROKER-DEALER WHO ACQUIRED ORIGINAL CAPITAL SECURITIES
FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES (A
"PARTICIPATING BROKER- DEALER") FOR A PERIOD ENDING 90 DAYS AFTER THE EXPIRATION
DATE (SUBJECT TO EXTENSION UNDER CERTAIN LIMITED CIRCUMSTANCES DESCRIBED IN THE
PROSPEC TUS) OR, IF EARLIER, WHEN ALL SUCH EXCHANGE CAPITAL SECURITIES HAVE BEEN
DISPOSED OF BY SUCH PARTICIPATING BROKER-DEALER.
IN THAT REGARD, EACH PARTICIPATING BROKER-DEALER, BY TENDERING SUCH ORIGINAL
CAPITAL SECURITIES AND EXECUTING THIS LETTER OF TRANSMITTAL OR BY TENDERING
THROUGH BOOK-ENTRY TRANSFER IN LIEU THEREOF, AGREES THAT, UPON RECEIPT OF NOTICE
FROM THE CORPORATION OR THE TRUST OF THE OCCURRENCE OF ANY EVENT OR THE
DISCOVERY OF ANY FACT WHICH MAKES ANY STATEMENT CONTAINED OR INCORPORATED BY
REFERENCE IN THE PROSPECTUS UNTRUE IN ANY MATERIAL RESPECT OR WHICH CAUSES THE
PROSPECTUS TO OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE
STATEMENTS CONTAINED OR INCORPORATED BY REFERENCE THEREIN, IN LIGHT OF THE
CIRCUMSTANCES UNDER
6
<PAGE>
WHICH THEY WERE MADE, NOT MISLEADING OR OF THE OCCURRENCE OF CERTAIN OTHER
EVENTS SPECIFIED IN THE REGISTRATION AGREEMENT, SUCH PARTICIPATING BROKER-DEALER
WILL SUSPEND THE SALE OF EXCHANGE CAPITAL SECURITIES PURSUANT TO THE PROSPECTUS
UNTIL (1) THE CORPORATION AND THE TRUST HAVE AMENDED OR SUPPLEMENTED THE
PROSPECTUS TO CORRECT SUCH MISSTATEMENT OR OMISSION AND HAVE FURNISHED COPIES OF
THE AMENDED OR SUPPLEMENTED PROSPECTUS TO THE PARTICIPATING BROKER-DEALER OR (2)
THE CORPORATION OR THE TRUST HAS GIVEN NOTICE THAT THE SALE OF THE EXCHANGE
CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE. IF THE CORPORATION OR THE
TRUST GIVES SUCH NOTICE TO SUSPEND THE SALE OF THE EXCHANGE CAPITAL SECURITIES,
THEY SHALL EXTEND THE 90-DAY PERIOD REFERRED TO ABOVE DURING WHICH PARTICIPATING
BROKER-DEALERS ARE ENTITLED TO USE THE PROSPECTUS IN CONNECTION WITH THE RESALE
OF EXCHANGE CAPITAL SECURITIES BY THE NUMBER OF DAYS DURING THE PERIOD FROM AND
INCLUDING THE DATE OF THE GIVING OF SUCH NOTICE TO AND INCLUDING THE DATE ON
WHICH (1) PARTICIPATING BROKER-DEALERS SHALL HAVE RECEIVED COPIES OF THE
SUPPLEMENTED OR AMENDED PROSPECTUS NECESSARY TO PERMIT RESALES OF THE EXCHANGE
CAPITAL SECURITIES OR (2) THE CORPORATION OR THE TRUST HAS GIVEN NOTICE THAT THE
SALE OF EXCHANGE CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE.
AS A RESULT, A PARTICIPATING BROKER-DEALER WHO INTENDS TO USE THE PROSPECTUS
IN CONNECTION WITH RESALES OF EXCHANGE CAPITAL SECURITIES RECEIVED IN EXCHANGE
FOR ORIGINAL CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER MUST NOTIFY THE
CORPORATION AND THE TRUST, OR CAUSE THE CORPORATION AND THE TRUST TO BE
NOTIFIED, ON OR PRIOR TO THE EXPIRATION DATE, THAT IT IS A PARTICIPATING
BROKER-DEALER. SUCH NOTICE MAY BE GIVEN IN THE SPACE PROVIDED ABOVE OR MAY BE
DELIVERED TO THE EXCHANGE AGENT AT THE ADDRESS SET FORTH IN THE PROSPECTUS UNDER
"THE EXCHANGE OFFER--EXCHANGE AGENT."
Holders of the Capital Securities will be entitled to receive cumulative
Distributions arising from the payment of interest on the Junior Subordinated
Debentures, accumulating from October 28, 1999, and payable semi-annually in
arrears on May 1st and November 1st of each year, commencing on May 1, 2000. The
record dates will be the 15th day of the month immediately preceding the month
in which the relevant payment occurs. In the event the Exchange Offer is
consummated prior to the first record date, April 15, 2000, each Exchange
Capital Security will pay cumulative Distributions from and after October 28,
1999. However, in the event the Exchange Offer is consummated after April 15,
2000, Distributions will be paid on the Original Capital Securities accumulated
from and after October 28, 1999 through May 1, 2000, and the Exchange Capital
Securities then will pay Distributions from and after May 1, 2000. The amount of
each Distribution with respect to Exchange Capital Securities will include
amounts accrued to, but excluding the date the Distribution is due. Because of
the foregoing procedures regarding Distributions, the amount of the
Distributions received by holders whose Original Capital Securities are accepted
for exchange will not be affected by the exchange. The amount of Distributions
payable for any period will be computed on the basis of the actual number of
days elapsed in such period and a 360-day year of twelve 30-day months. In the
event that any date on which Distributions are payable on the Exchange Capital
Securities is not a Business Day (as defined below), 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 to any such delay),
except that if such next succeeding Business Day falls in the next calendar
year, such payment shall be made on the last Business Day of the calendar year,
in each case with the same force and effect as if made on such date (each date
on which Distributions are payable in accordance with the foregoing, a
"Distribution Date"). A "Business Day" shall mean any day other than a Saturday,
a Sunday or a day on which banking
7
<PAGE>
institutions in New York, New York or Wilmington, Delaware are authorized or
required by law or executive order to remain closed.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Corporation or the Trust to be necessary or desirable to
complete the sale, assignment and transfer of the Original Capital Securities
tendered hereby. All authority herein conferred or agreed to be conferred in
this Letter of Transmittal shall survive the death or incapacity of the
undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, executors, administrators, personal representatives, trustees in
bankruptcy, legal representatives, successors and assigns of the undersigned.
Except as stated in the Prospectus, this tender is irrevocable.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF ORIGINAL
CAPITAL SECURITIES" ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE
TENDERED THE ORIGINAL CAPITAL SECURITIES AS SET FORTH IN SUCH BOX.
8
<PAGE>
HOLDER(S) SIGN HERE
(SEE ATTACHED INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON THE LAST PAGE)
(NOTE: SIGNATURE(S) MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2)
Must be signed by registered Holder(s) exactly as name(s) appear(s) on
Certificate(s) for the Original Capital Securities hereby tendered or on the
records of DTC, as the case may be, or by any person(s) authorized to become the
registered Holder(s) by endorsements and documents transmitted herewith
(including such opinions of counsel, certifications and other information as may
be required by the Trust to comply with the restrictions on transfer applicable
to the Original Capital Securities). If signature is by an attorney-in-fact,
executor, administrator, trustee, guardian, officer of a corporation or another
acting in a fiduciary capacity or representative capacity, set forth the
signatory's full title. See Instructions 5.
- -------------------------------------------------------------------------------
(Signature(s) of Holder(s))
Date , 2000
-------------------------
Name(s)
------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Please Print)
Capacity (full title)
----------------------------------------------------------
Address
------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number ( )
------------------------------------------
Tax Identification or Social Security Number
----------------------------------
GUARANTEE OF SIGNATURE(S)
(See Attached Instructions 2 and 5)
Authorized Signature
-----------------------------------------------------------
Date , 2000
-------------------------
Name of Firm
-------------------------------------------------------------------
Capacity (full title)
----------------------------------------------------------
(Please Print)
Address
------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number ( )
----------------------------------------
9
<PAGE>
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if Exchange Capital Securities or non-tendered or
non-exchanged Original Capital Securities are to be issued in the name of
someone other than the registered Holder(s) of the Original Capital Securities
whose name(s) appear(s) above.
Issue:
o Non-tendered or non-exchanged Original Capital Securities to:
o Exchanged Capital Securities to:
Name(s)
------------------------------------------------------------------------
(PLEASE PRINT)
Address
-----------------------------------------------------------------------
(INCLUDE ZIP CODE)
- -------------------------------------------------------------------------------
Area Code and
Telephone Number
--------------------------------------------------------------
(TAX IDENTIFICATION OR
SOCIAL SECURITY NUMBER(S))
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if certificates for Exchange Capital Securities or
non-tendered or non-exchanged Original Capital Securities are to be sent to
someone other than the registered Holder(s) of the Original Capital Securities
whose name(s) appear(s) above, or such registered Holder(s) at an address other
than that shown above.
Mail:
o Non-tendered or non-exchanged Original Capital Securities to:
o Exchanged Capital Securities to:
Name(s)
------------------------------------------------------------------------
(PLEASE PRINT)
Address
-----------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and
Telephone Number
---------------------------------------------------------------
(TAX IDENTIFICATION OR
SOCIAL SECURITY NUMBER(S))
10
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. BOOK-ENTRY TRANSFER; DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFI-
CATES; GUARANTEED DELIVERY PROCEDURES. To tender in the Exchange Offer, Holders
must tender by (a) forwarding Certificates herewith or (b) book-entry transfer
pursuant to the procedures set forth in "The Exchange Offer--Procedures for
Tendering Original Capital Securities" in the Prospectus. Holders who are DTC
Participants tendering by book-entry transfer must execute such tender through
DTC's ATOP system. A Holder using ATOP should transmit its acceptance to DTC on
or prior to the Expiration Date. DTC will verify such acceptance, execute a
book-entry transfer of the tendered Original Capital Securities into the
Exchange Agent's account at DTC and then send to the Exchange Agent a book-entry
confirmation, including an Agent's Message confirming that DTC has received an
express acknowledgement from such Holder that such Holder has received and
agrees to be bound by this Letter of Transmittal and that the Trust and the
Corporation may enforce this Letter of Transmittal against such Holder. The
Book-Entry Confirmation must be received by the Exchange Agent in order for the
tender relating thereto to be effective. Book-entry transfer to DTC in
accordance with DTC's procedure does not constitute delivery of the Book-Entry
Confirmation to the Exchange Agent.
If the tender is not made through ATOP, Certificates, as well as this
Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees. and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
at its address set forth herein on or prior to the Expiration Date in order for
such tender to be effective.
Original Capital Securities may be tendered in whole or in part in the
liquidation amount of $100,000 (100 Original Capital Securities) and integral
multiples of $1,000 in excess thereof, provided that, if any, Original Capital
Securities are tendered for exchange in part, the untendered liquidation amount
thereof must be $100,000 (100 Original Capital Securities) or any integral
multiple of $1,000 in excess thereof.
Holders who wish to tender their Original Capital Securities and (i)
whose Original Capital Securities are not immediately available or (ii) who
cannot deliver their Original Capital Securities, this Letter of Transmittal and
all other required documents to the Exchange Agent on or prior to the Expiration
Date or (iii) who cannot complete the procedures for delivery by book-entry
transfer on a timely basis, may tender their Original Capital Securities by
properly completing and duly executing a Notice of Guaranteed Delivery pursuant
to the guaranteed delivery procedures set forth in the Prospectus under "The
Exchange Offer--Guaranteed Delivery." Pursuant to such procedures: (i) such
tender must be made by or through an Eligible Institution (as defined below);
(ii) a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form accompanying this Letter of Transmittal, must be
received by the Exchange Agent on or prior to the Expiration Date; and (iii) (a)
a Book-Entry Confirmation or (b) the certificates representing all tendered
Original Capital Securities, in proper form for transfer, together with a Letter
of Transmittal (or facsimile thereof), properly completed and duly executed,
with any required signature guarantees and any other documents required by this
Letter of Transmittal, must be, in any case, received by the Exchange Agent
within three Nasdaq National Market trading days after the date of execution of
such Notice of Guaranteed Delivery, all as provided in the Prospectus under "The
Exchange Offer -- Guaranteed Delivery."
A Notice of Guaranteed Delivery may be delivered by hand or transmitted
by facsimile or mail to the Exchange Agent, and must include a guarantee by an
Eligible Institution in the form set forth in such Notice. For Original Capital
Securities to be properly tendered pursuant to the guaranteed delivery
procedure, the Exchange Agent must receive a Notice of Guaranteed Delivery on or
prior to the Expiration Date. As used herein and in the Prospectus, "Eligible
Institution" means a firm or other entity
11
<PAGE>
identified in Rule 17Ad-15 under the Exchange Act as "an eligible guarantor
institution," including (as such terms are defined therein) (i) a bank; (ii) a
broker, dealer, municipal securities broker or dealer or government securities
broker or dealer, (iii) a credit union; (iv) a national securities exchange,
registered securities association or clearing agency; or (v) a savings
association that is a participant in a Securities Transfer Association.
THE METHOD OF DELIVERY OF THE BOOK-ENTRY CONFIRMATION OR CERTIFICATES,
THIS LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND
SOLE RISK OF THE TENDERING HOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN
ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL
WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE
IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
Neither the Corporation nor the Trust will accept any alternative,
conditional or contingent tenders. Each tendering Holder, by book-entry transfer
through ATOP or execution of a Letter (or facsimile thereof), waives any right
to receive any notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Letter of Transmittal is signed by the registered
Holder(s) of Original Capital Securities tendered
herewith, unless such Holder(s) has completed either the
box entitled "Special Issuance Instructions" or the box
entitled "Special Delivery Instructions" above, or
(ii) such Original Capital Securities are tendered for the
account of a firm that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the
signature (s) on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Original Capital Securities" is inadequate, the Certificate
number(s) and/or the liquidation amount of Original Capital Securities and any
other required information should be listed on a separate signed schedule which
is attached to this Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Original Capital
Securities will be accepted only in the liquidation amount of $100,000 (100
Original Capital Securities) and integral multiples of $1,000 in excess thereof,
provided that if any Original Capital Securities are tendered for exchange in
part, the untendered liquidation amount thereof must be $100,000 (100 Original
Capital Securities) or any integral multiple of $1,000 in excess thereof. If
less than all the Original Capital Securities are to be tendered, fill in the
liquidation amount of Original Capital Securities that are to be tendered in the
box entitled "Liquidation Amount of Original Capital Securities Tendered." If
applicable, new Certificate(s) for the Original Capital Securities that were not
tendered will be sent to the address designated herein by such Holder promptly
after the Expiration Date. All Original Capital Securities represented by
Certificates delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Original Capital
Securities may be withdrawn at any time on or prior to the Expiration Date. In
order for a withdrawal to be effective on or prior to such date, a written or
facsimile transmission of such notice of withdrawal must be timely received by
the
12
<PAGE>
Exchange Agent at the address set forth above or in the Prospectus on or prior
to such date. Any such notice of withdrawal must specify the name of the person
who tendered the Original Capital Securities to be withdrawn, the aggregate
liquidation amount of Original Capital Securities to be withdrawn, and, if any
Certificates for Original Capital Securities have been tendered, the name of the
registered Holder of the Original Capital Securities as set forth on any such
Certificates, if different from that of the person who tendered such Original
Capital Securities. If Certificates for the Original Capital Securities have
been delivered or otherwise identified to the Exchange Agent, then prior to the
physical release of such Certificates, the tendering Holder must submit the
serial numbers shown on the particular Certificates to be withdrawn and the
signature on the notice of withdrawal must be guaranteed by an Eligible
Institution, except in the case of Original Capital Securities tendered for the
account of an Eligible Institution. If Original Capital Securities have been
tendered pursuant to the procedures for book-entry transfer set forth in the
Prospectus under "The Exchange Offer--Procedures for Tendering Original Capital
Securities," the notice of withdrawal must specify the name and number of the
account at DTC to be credited with the withdrawal of Original Capital
Securities. Withdrawals of tenders of Original Capital Securities may not be
rescinded. Original Capital Securities properly withdrawn will not be deemed
validly tendered for purposes of the Exchange Offer, but may be retendered at
any subsequent time on or prior to the Expiration Date by following the
procedures described herein.
All questions as to the validity, form and eligibility (including time
of receipt) of such withdrawal notices will be determined by the Trust, in its
sole discretion, whose determination shall be final and binding on all parties.
Neither the Corporation, the Trust, any affiliates or assigns of the Corporation
or the Trust, the Exchange Agent nor any other person shall be under any duty to
give any notification of any irregularities in any notice of withdrawal or incur
any liability for failure to give any such notification. Any Original Capital
Securities which have been tendered but which are withdrawn will be returned to
the Holder thereof promptly after withdrawal.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered Holder(s) of the Original
Capital Securities tendered hereby, the signature (s) must correspond exactly
with the name (s) as written on the face of the Certificate(s) for such Original
Capital Securities, without alteration, enlargement or any change whatsoever, or
as recorded in DTC's book-entry transfer facility system, as the case may be.
If any Certificates tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Original Capital Securities are registered in different
names on several Certificates, it will be necessary to complete, sign and submit
as many separate Letters of Transmittal as there are different registrations of
Certificates. If any tendered Original Capital Securities are registered in
different names in several book-entry accounts, proper procedures for book-entry
transfer must be followed for each account.
If this Letter of Transmittal or any Certificates or bond powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and must submit proper
evidence satisfactory to the Corporation and the Trust, in their sole
discretion, of each such person's authority so to act.
When this Letter of Transmittal is signed by the registered Holder(s) of
the Original Capital Securities listed and transmitted hereby, or book-entry
transfer is effectuated by such Holder(s), no endorsement(s) of Certificate (s)
or separate bond power(s) are required except if Exchange Capital Securities are
to be issued in the name of a person other than the registered Holder(s). If
such exception
13
<PAGE>
applies, signature(s) on such Certificate(s) or bond power(s) must be guaranteed
by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered Holder(s) of the Original Capital Securities listed, the
Certificate(s) must be endorsed or accompanied by appropriate bond powers,
signed exactly as the name(s) of the registered Holder(s) appear(s) on the
Certificates, and also must be accompanied by such opinions of counsel,
certifications and other information as the Corporation or the Trust may require
in accordance with the restrictions on transfer applicable to the Original
Capital Securities. In such event, signatures on such Certificates or bond
powers must be guaranteed by an Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If Exchange Capital
Securities are to be issued in the name of a person other than the signer of
this Letter of Transmittal, or if Exchange Capital Securities are to be sent to
someone other than the signer of this Letter of Transmittal or to an address
other than that shown above, the appropriate boxes on this Letter of Transmittal
should be completed. Original Capital Securities not exchanged will be returned,
if evidenced by Certificates, by mail or, if tendered by book-entry transfer, by
crediting the account at DTC indicated above in Instruction 4.
7. IRREGULARITIES. The Corporation and the Trust will determine, in
their sole discretion, all questions as to the form of documents, validity,
eligibility (including time of receipt) and acceptance for exchange of any
tender of Original Capital Securities, which determination shall be final and
binding on all parties. The Corporation and the Trust reserve the absolute right
to reject any and all tenders determined by either of them not to be in proper
form or the acceptance of which, or exchange for which, may in the view of
counsel to the Corporation and the Trust be unlawful. The Corporation and the
Trust also reserve the absolute right, subject to applicable law, to waive any
of the conditions of the Exchange Offer set forth in the Prospectus under "The
Exchange Offer--Conditions to the Exchange Offer" or any conditions or
irregularity in any tender of Original Capital Securities of any particular
Holder whether or not similar conditions or irregularities are waived in the
case of other Holders. The Corporation's and the Trust's interpretation of the
terms and conditions of the Exchange Offer (including this Letter of Transmittal
and the instructions hereto) will be final and binding. No tender of Original
Capital Securities will be deemed to have been validly made until all
irregularities with respect to such tender have been cured or waived. The
Corporation, the Trust, any affiliates or assigns of the Corporation, the Trust,
the Exchange Agent, or any other person shall not be under any duty to give
notification of any irregularities in tenders or incur any liability for failure
to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions
and requests for assistance may be directed to the Exchange Agent at its address
and telephone number set forth on the front cover of this Letter of Transmittal.
Additional copies of the Prospectus, the Notice of Guaranteed Delivery and this
Letter of Transmittal may be obtained from the Exchange Agent or from your
broker, dealer, commercial bank, trust company or other nominee.
9. 31% BACKUP WITHHOLDING, SUBSTITUTE FORM W-9. Under U.S. Federal
income tax law, a Holder whose tendered Original Capital Securities are accepted
for exchange is required to provide the Exchange Agent with such Holder's
correct taxpayer identification number ("TIN") on Substitute Form W-9 below. If
the Exchange Agent is not provided with the correct TIN, the Internal Revenue
Service (the "IRS") may subject the Holder or other payee to a $50 penalty. In
addition, payments to such Holders or other payees with respect to Original
Capital Securities exchanged pursuant to the Exchange Offer may be subject to
31% backup withholding.
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<PAGE>
The box in Part 2 of the Substitute Form W-9 may be checked if the
tendering Holder has not been issued a TIN and has applied for a TIN or intends
to apply for a TIN in the near future. If the box in Part 2 is checked, the
Holder or other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 2 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60-day period following the date of the Substitute Form W-9.
If the Holder furnishes the Exchange Agent with its TIN within 60 days after the
date of the Substitute Form W-9, the amounts retained during the 60-day period
will be remitted to the Holder and no further amounts shall be retained or
withheld from payments made to the Holder thereafter. If, however, the Holder
has not provided the Exchange Agent with its TIN within such 60-day period,
amounts withheld will be remitted to the IRS as backup withholding. In addition,
31% of all payments made thereafter will be withheld and remitted to the IRS
until a correct TIN is provided.
The Holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered owner of
the Original Capital Securities or of the last transferee appearing on the
transfers attached to, or endorsed on, the Original Capital Securities.
Certain Holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these backup
withholding and reporting requirements. Such Holders should nevertheless
complete the attached Substitute Form W-9 below, and write "exempt" on the face
thereof, to avoid possible erroneous backup withholding. A foreign person may
qualify as an exempt recipient by submitting a properly completed IRS Form W-8,
signed under penalties of perjury, attesting to that holder's exempt status.
Backup withholding is not an additional U.S. Federal income tax. Rather,
the U.S. Federal income tax liability of a person subject to backup withholding
will be reduced by the amount of tax withheld. If withholding results in an
overpayment of taxes, a refund may be obtained.
10. WAIVER OF CONDITIONS. The Corporation and the Trust reserve the
absolute right to waive satisfaction of any or all conditions enumerated in the
Prospectus.
11. NO CONDITIONAL TENDERS. No alternative, conditional or contingent
tenders will be ac cepted. All tendering Holders, by execution of this Letter of
Transmittal, shall waive any right to receive notice of the acceptance of
Original Capital Securities for exchange.
Neither the Corporation, the Trust, the Exchange Agent nor any other
person is obligated to give notice of any defect or irregularity with respect to
any tender of Original Capital Securities nor shall any of them incur any
liability for failure to give any such notice.
12. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificate(s)
representing Original Capital Securities have been lost, destroyed or stolen,
the Holder should promptly notify the Exchange Agent. The Holder will then be
instructed as to the steps that must be taken in order to replace the
Certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificate(s) have been followed.
13. SECURITY TRANSFER TAXES. Holders who tender their Original Capital
Securities for exchange will not be obligated to pay any transfer taxes in
connection therewith. If, however, Exchange Capital Securities are to be
delivered to, or are to be issued in the name of. any person other than the
registered Holder of the Original Capital Securities tendered, or if a transfer
tax is imposed for any reason other than the exchange of Original Capital
Securities in connection with the Exchange Offer,
15
<PAGE>
then the amount of any such transfer tax (whether imposed on the registered
holder or any other persons) will be payable by the tendering Holder.
IMPORTANT: BOOK-ENTRY CONFIRMATION OR THIS LETTER OF TRANSMITTAL (OR
FACSIMILE THEREOF) AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE
EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.
16
<PAGE>
TO BE COMPLETED BY ALL TENDERING SECURITYHOLDERS
(See Instructions 9)
PAYOR'S NAME:WILMINGTON TRUST COMPANY, AS EXCHANGE AGENT
<TABLE>
<CAPTION>
<S> <C> <C>
SUBSTITUTE Part 1 - PLEASE PROVIDE YOUR TIN
Form W-9 IN THE BOX AT RIGHT AND TIN:_______________________________
CERTIFY BY SIGNING AND DATING Social Security Number
Department of the BELOW: or Employer Identification Number
Treasury
Internal Revenue Service Part 2 - TIN Applied for o
CERTIFICATION-- UNDER THE PENALTIES OF PERJURY, I CERTIFY
Payer's Request for THAT:
Taxpayer Identification
Number ("TIN") (1) The number shown on this form is my
and Certification correct taxpayer identification number (or
I am waiting for a number to be issued to
me).
(2) I am not subject to backup withholding
either because (i) I am exempt from backup
withholding, (ii) I have not been notified
by the Internal Revenue Service ("IRS")
that I am subject to backup withholding as
a result of a failure to report all
interest or dividends, or (iii) the IRS
has notified me that I am no longer
subject to backup withholding, and
(3) any other information provided on this form is true and correct.
Signature Date:
----------------------------------- -----------------
</TABLE>
You must cross out item (iii) in Part (2) above if you have been notified by the
IRS that you are subject to backup withholding because of underreporting
interest or dividends on your tax return and you have not been notified by the
IRS that you are no longer subject to backup withholding.
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY IN CERTAIN
CIRCUMSTANCES RESULT IN BACKUP WITHHOLDING OF 31% OF ANY AMOUNTS PAID
TO YOU PURSUANT TO THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 2 OF THE SUBSTITUTE FORM W-9
17
<PAGE>
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (2)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number by the time of payment, 31%
of all payments made to me on account of the Exchange Capital Securities shall
be retained until I provide a taxpayer identification number to the Exchange
Agent and that, if I do not provide my taxpayer identification number within 60
days, such retained amounts shall be remitted to the Internal Revenue Service as
backup withholding and 31% of all reportable payments made to me thereafter will
be withheld and remitted to the Internal Revenue Service until I provide a
taxpayer identification number.
- ---------------------------------------- -----------------
Signature(s) Date
18
<PAGE>
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
9.75% CAPITAL SECURITIES, SERIES A
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OF
ASTORIA CAPITAL TRUST I
UNCONDITIONALLY GUARANTEED BY
ASTORIA FINANCIAL CORPORATION
This Notice of Guaranteed Delivery, or one substantially equivalent
to this form, must be used to accept the Exchange Offer (as defined below) if
(i) certificates for the Trust's (as defined below) 9.75% Capital Securities,
Series A (the "Original Capital Securities") are not immediately available, (ii)
Original Capital Securities, the Letter of Transmittal and all other required
documents cannot be delivered to Wilmington Trust Company, the property trustee
("Property Trustee") of Astoria Capital Trust I, as exchange agent (the
"Exchange Agent") on or prior to the Expiration Date (as defined in the
Prospectus referred to below) or (iii) the procedures for delivery by book-entry
transfer cannot be completed on a timely basis. This Notice of Guaranteed
Delivery may be delivered by hand, overnight courier or mail, or transmitted by
facsimile transmission, to the Exchange Agent. See "The Exchange
Offer--Procedures for Tendering Original Capital Securities" in the Prospectus.
In addition, in order to utilize the guaranteed delivery procedure to tender
Original Capital Securities pursuant to the Exchange Offer, a completed, signed
and dated Letter of Transmittal relating to the Original Capital Securities (or
facsimile thereof) must also be received by the Exchange Agent on or prior to
the Expiration Date. Capitalized terms not defined herein have the meanings
assigned to them in the Prospectus.
The Exchange Agent For The Exchange Offer Is:
WILMINGTON TRUST COMPANY,
as Property Trustee of Astoria Capital Trust I
<TABLE>
<CAPTION>
<S> <C> <C>
Facsimile Transmission By Hand, Overnight Delivery, Courier Confirm by Telephone:
Number: or Certified Mail: (302) 651-8474
(302) 651-1079 Wilmington Trust Company,
as Exchange Agent
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust
Operations -
Astoria Capital Trust I Exchange Offer
</TABLE>
For Information:
(302) 651-8474
1
<PAGE>
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER
THAN AS SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY
VIA FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A
VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON
THE LETTER OF TRANSMITTAL.
Ladies and Gentlemen:
The undersigned hereby tenders to Astoria Capital Trust I, a Delaware
business trust (the "Trust"), and to Astoria Financial Corporation, a Delaware
Corporation (the "Corporation"), upon the terms and subject to the conditions
set forth in the Prospectus dated _____________, 2000 (as the same may be
amended or supplemented from time to time, the "Prospectus"), and the related
Letter of Transmittal (which together constitute the "Exchange Offer"), receipt
of which is hereby acknowledged, the aggregate liquidation amount of Original
Capital Securities set forth below pursuant to the guaranteed delivery
procedures set forth in the Prospectus under the caption "The Exchange Offer --
Procedures for Tendering Original Capital Securities."
This Notice of Guaranteed Delivery must be signed by the registered
holder(s) of the Original Capital Securities exactly as its (their) name(s)
appear(s) on certificates for Original Capital Securities or on a security
position listing the owners of Original Capital Securities, or by person(s)
authorized to become registered Holder(s) by endorsement and documents
transmitted with this Notice of Guaranteed Delivery. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer or other
person acting in a fiduciary or representative capacity, such person must set
forth his or her full title below.
PLEASE SIGN AND COMPLETE
Print Name(s) of Registered Holder(s):
-----------------------------------------
Address(es):
-------------------------------------------------------------------
Area Code and Telephone Number:
------------------------------------------------
Print Name and Title of Authorized Signatory:
----------------------------------
Total Liquidation Amount of Original Capital Securities Held By
Registered Holder: $
----------------------------------------------------------
Liquidation Amount of Original Capital Securities Tendered (if different than
the total liquidation amount): $ *
--------------------------------------------
If Original Capital Securities will be tendered by forwarding a
Certificate or Certificates, provide the following information:
Certificate No(s) of Original Capital Securities (if available):
---------------
If Original Capital Securities will be tendered by book-entry transfer, provide
the
2
<PAGE>
The Depository Trust Company ("DTC") Account Number:
---------------------------
Date:
-----------------------------------------------
* Must be in denominations of a Liquidation Amount of $ 1,000 and any
integral multiple thereof, and not less than $100,000 aggregate Liquidation
Amount.
- ------------------------------------------------------------------------------
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned and every obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned.
- -------------------------------------------------------------------------------
SIGNATURE(S) OF REGISTERED HOLDER(S) OR AUTHORIZED SIGNATORY
X X
- --------------------------------------- -------------------------------------
X X
- --------------------------------------- -------------------------------------
3
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified in Rule 17Ad-15 under
the Securities Exchange Act of 1934, as amended, as an "eligible guarantor
institution," including (as such terms are defined therein): a bank; (ii) a
broker, dealer, municipal securities broker, municipal securities dealer,
government securities broker or government securities dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association recognized program (each of the foregoing being
referred to as an "Eligible Institution"), hereby guarantees to deliver to the
Exchange Agent, at the address set forth above, either the Original Capital
Securities tendered hereby in proper form for transfer, or confirmation of the
transfer of such Original Capital Securities to the Exchange Agent's account at
DTC, pursuant to the procedures for book-entry transfer set forth in the
Prospectus, in either case together with one or more properly completed and duly
executed Letter(s) of Transmittal (or facsimile thereof) and any other required
documents within three business days after the date of execution of this Notice
of Guaranteed Delivery.
THE UNDERSIGNED ACKNOWLEDGES THAT IT MUST DELIVER THE LETTER(S) OF
TRANSMITTAL AND THE ORIGINAL CAPITAL SECURITIES TENDERED HEREBY TO THE EXCHANGE
AGENT WITHIN THE TIME PERIOD SET FORTH ABOVE AND THAT FAILURE TO DO SO COULD
RESULT IN A FINANCIAL LOSS TO THE UNDERSIGNED.
Name of Firm (AUTHORIZED SIGNATURE)
- --------------------------------------- -----------------------------------
Address (PLEASE TYPE OR PRINT)
- --------------------------------------- -----------------------------------
Zip Code Title
- --------------------------------------- -----------------------------------
Area Code and Telephone No. Dated:
--------------------- -----------------
NOTE: DO NOT SEND CERTIFICATES FOR ORIGINAL CAPITAL
SECURITIES WITH THIS FORM. CERTIFICATES FOR ORIGINAL
CAPITAL SECURITIES SHOULD ONLY BE SENT WITH YOUR
LETTER OF TRANSMITTAL.
4
<PAGE>
EXHIBIT 99.3
FORM OF EXCHANGE AGENT AGREEMENT
______________, 2000
Wilmington Trust Company,
as Property Trustee of Astoria Capital Trust I
Corporate Trust Administration
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Ladies and Gentlemen:
Astoria Capital Trust I, a business trust formed under the laws of
the State of Delaware (the "Trust") proposes to make an offer (the "Exchange
Offer") to exchange any and all of its outstanding 9.75% Capital Securities,
Series A (Liquidation Amount $1,000 per Capital Security) (the "Original Capital
Securities") for its 9.75% Capital Securities, Series B (Liquidation Amount
$1,000 per Capital Security) (the "Exchange Capital Securities"). All of the
beneficial interests represented by common securities of the Trust are owned by
Astoria Financial Corporation, a Delaware corporation (the "Corporation"). The
terms and conditions of the Exchange Offer as currently contemplated are set
forth in a prospectus, dated ___________, 2000 (as the same may be amended or
supplemented from time to time, the "Prospectus"), to be distributed to all
record holders of the Original Capital Securities. A copy of the Prospectus is
attached hereto as Exhibit A. The Original Capital Securities and the Exchange
Capital Securities are collectively referred to herein as the "Securities."
Capitalized terms used but not defined herein shall have the same meaning given
them in the Prospectus.
A copy of each of the form of the Letter of Transmittal, the form of
the Notice of Guaranteed Delivery, the form of letter to brokers and the form of
letter to clients to be used in connection with the Exchange Offer are attached
hereto as Exhibit B.
The Trust hereby appoints the Property Trustee to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to the Property Trustee.
The Exchange Offer is expected to be commenced by the Trust on or
about ___________, 2000. The Letter of Transmittal accompanying the Prospectus
(or in the case of book-entry securities, the ATOP system) is to be used by the
holders of the Original Capital Securities to accept the Exchange Offer and
contains instructions with respect to (i) the delivery of certificates for
Original Capital Securities tendered in connection therewith and (ii) the
book-entry transfer of Securities to the Exchange Agent's account.
1
<PAGE>
Wilmington Trust Company
___________, 2000
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
___________, 2000 or on such later date or time to which the Trust may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Trust expressly reserves the right to extend
the Exchange Offer from time to time by giving oral (to be confirmed in writing)
or written notice to you before 9:00 A.M., New York City time, on the Business
Day following the previously scheduled Expiration Date.
The Trust expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Original Capital Securities
not theretofore accepted for exchange, upon the occurrence of any of the
conditions of the Exchange Offer specified in the Prospectus under the caption
"The Exchange Offer -- Conditions to the Exchange Offer." The Trust will give
you prompt oral (confirmed in writing) or written notice of any amendment,
termination or nonacceptance of Original Capital Securities.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer" or as specifically set forth herein; provided, however, that in no way
will your general duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Original Capital
Securities at The Depository Trust Company (the "Book-Entry Transfer Facility")
for purposes of the Exchange Offer as soon as practicable, and any financial
institution that is a participant in the Book-Entry Transfer Facility's system
may make book-entry delivery of the Original Capital Securities by causing the
Book-Entry Transfer Facility to transfer such Original Capital Securities into
your account in accordance with the Book-Entry Transfer Facility's procedure for
such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Original Capital Securities (or confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility) and any other
documents received by you from or for holders of the Original Capital Securities
to ascertain whether: (i) on their face the Letters of Transmittal and any such
other documents are duly executed and properly completed in accordance with
instructions set forth therein and (ii) the Original Capital Securities have
otherwise been properly tendered. In each case where the Letter of Transmittal
or any other document has been improperly completed or executed or any of the
certificates for Original Capital Securities are not in proper form for transfer
or some other irregularity in connection with the acceptance of the Exchange
Offer exists, you will endeavor to inform such tendering holders of the need for
fulfillment of all requirements and to take any other action as may be necessary
or advisable to cause such irregularity to be corrected.
2
<PAGE>
Wilmington Trust Company
___________, 2000
4. With the approval of any Administrative Trustee of the Trust or
any person designated in writing by the Corporation (a "Designated Officer")
(such approval, if given orally, to be confirmed in writing) or any other party
designated by any such Administrative Trustee or Designated Officer in writing,
you are authorized to waive any irregularities in connection with any tender of
Original Capital Securities pursuant to the Exchange Offer.
5. Tenders of Original Capital Securities may be made only as set
forth in the Letter of Transmittal and in the section of the Prospectus
captioned "The Exchange Offer -- Procedures for Tendering Original Capital
Securities," and Original Capital Securities shall be considered properly
tendered to you only when tendered in accordance with the procedures set forth
therein.
Notwithstanding the provisions of this paragraph 5, Original Capital
Securities that any Administrative Trustee of the Trust or Designated Officer of
the Corporation shall approve as having been properly tendered shall be
considered to be properly tendered. Such approval, if given orally, shall be
confirmed in writing.
6. You shall advise the Trust and the Corporation with respect to any
Original Capital Securities received subsequent to the Expiration Date and
accept their instructions with respect to disposition of such Original Capital
Securities.
7. You shall accept tenders:
(a) in cases where the Original Capital Securities are
registered in two or more names only if signed by all
named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a
representative capacity only when proper evidence of such
person's authority so to act is submitted; and
(c) from persons other than the registered holder of Original
Capital Securities provided that customary transfer
requirements.
You shall accept partial tenders of Original Capital Securities where
so indicated and as permitted in the Letter of Transmittal and deliver
certificates for Original Capital Securities to the transfer agent for division
and return any untendered Original Capital Securities to the holder (or such
other person as may be designated in the Letter of Transmittal) as promptly as
practicable after expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Trust will notify you (such notice, if given orally, to be
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Original Capital Securities properly tendered and you, on behalf of the
Trust, will exchange such Original Capital Securities for Exchange Capital
Securities provided to you by or on behalf of the Trust and cause such Original
Capital Securities to be canceled. Delivery
3
<PAGE>
Wilmington Trust Company
___________, 2000
of Exchange Capital Securities will be made on behalf of the Trust by you at the
rate of $1,000 liquidation amount of Exchange Capital Securities for each $1,000
liquidation amount of the corresponding series of Original Capital Securities
tendered promptly after notice (such notice, if given orally, to be confirmed in
writing) of acceptance of said Original Capital Securities by the Trust;
provided, however, that in all cases, Original Capital Securities tendered
pursuant to the Exchange Offer will be exchanged only after timely receipt by
you of certificates for such Original Capital Securities (or confirmation of
book-entry transfer into your account at the Book-Entry Transfer Facility), a
properly completed and duly executed Letter of Transmittal (or facsimile
thereof) with any required signature guarantees and any other required
documents. The Trust shall issue Exchange Capital Securities only in
denominations of $1,000 or any integral multiple thereof. Original Capital
Securities may be tendered in whole or in part in denominations of $100,000 and
integral multiples of $1,000 in excess thereof, provided that if any Original
Capital Securities are tendered for exchange in part, the untendered liquidation
amount thereof must be $100,000 or any integral multiple of $1,000 in excess
thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Original Capital Securities tendered pursuant to
the Exchange Offer may be withdrawn at any time on or prior to the Expiration
Date.
10. The Trust shall not be required to exchange any Original Capital
Securities tendered if any of the conditions set forth in the Exchange Offer are
not met. Notice of any decision by the Trust not to exchange any Original
Capital Securities tendered shall be given orally (and confirmed in writing) by
the Trust to you.
11. If, pursuant to the Exchange Offer, the Trust does not accept for
exchange all or part of the Original Capital Securities tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer -- Conditions to the Exchange
Offer" or otherwise, you shall promptly after the expiration or termination of
the Exchange Offer return those certificates of Original Capital Securities not
accepted for exchange (or effect appropriate book-entry transfer), together with
any related required documents and the Letters of Transmittal relating thereto
that are in your possession, to the persons who deposited them.
12. All certificates for reissued Original Capital Securities,
unaccepted Original Capital Securities or Exchange Capital Securities shall be
forwarded (a) by first-class certified mail, return receipt requested, under a
blanket surety bond at the direction and expense of the Corporation protecting
you and the Trust from loss or liability arising out of the non-receipt or
non-delivery of such certificates; (b) by registered mail insured separately by
you at the expense of the Corporation, protecting you, the Corporation and the
Trust from loss or liability arising out of the non-receipt or non-delivery of
such certificates or (c) by effectuating appropriate book-entry transfer.
4
<PAGE>
Wilmington Trust Company
___________, 2000
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth in the section of the Prospectus
captioned "The Exchange Offer," the Letter of Transmittal
or herein or as may be subsequently agreed to in writing by
you and the Trust;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or
genuineness of any of the certificates or the Original
Capital Securities or Exchange Capital Securities
represented thereby deposited with you or issued pursuant
to the Exchange Offer, and will not be required to and will
make no representation as to the validity, value or
genuineness of the Exchange Offer or the Letter of
Transmittal or any other disclosure materials delivered in
connection therewith;
(c) shall not be obligated to take any legal action hereunder;
if, however, you determine to take any legal action
hereunder, and, where the taking of such action might, in
your judgment, subject or expose you to any expense or
liability, you shall not be required to act unless you
shall have been furnished with an indemnity satisfactory to
you;
(d) may rely on, and be fully authorized and protected in
acting or failing to act upon any certificate, instrument,
opinion, notice, letter, telegram, telex, facsimile
transmission or other document or security delivered to you
and believed by you to be genuine and to have been signed
by the proper party or parties;
(e) may reasonably act upon any tender, statement, request,
agreement or other instrument whatsoever not only as to its
due execution and validity and effectiveness of its
provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good
faith believe to be genuine or to have been signed or
represented by a proper person or persons;
(f) may rely on, and shall be authorized and protected in
acting or failing to act upon the written, telephonic and
oral instructions with respect to any matter relating to
you acting as Exchange Agent covered by this Agreement (or
supplementing or qualifying any such actions) of officers
of the Corporation;
(g) may consult with counsel satisfactory to you, including
counsel for the Trust, with respect to any questions
relating to your duties and responsibilities and the advice
or opinion of such counsel shall be full and complete
authorization and protection in respect of any action
taken, suffered or omitted to be taken by you hereunder in
good
5
<PAGE>
Wilmington Trust Company
___________, 2000
faith and in accordance with the advice or opinion of such
counsel, provided that you shall promptly notify the
Corporation of any action taken or omitted by you in
reliance upon such advice or opinion;
(h) are not authorized, and shall have no obligation, to pay
any brokers, dealers or soliciting fees to any person; and
(i) shall not advise any person tendering Original Capital
Securities pursuant to the Exchange Offer as to the wisdom
of making such tender or as to the market value or decline
or appreciation in market value of any Original Capital
Securities.
15. You shall take such action as may from time to time be requested
by the Trust or its counsel or any Designated Officer of the Corporation (and
such other action as you may reasonably deem appropriate) to furnish copies of
the Prospectus, Letter of Transmittal and the Notice of Guaranteed Delivery or
such other forms as may be approved and provided to you from time to time by the
Trust or the Corporation, to all persons requesting such documents and to accept
and comply with telephone requests for information relating to the Exchange
Offer, provided that such information shall relate only to the procedures for
accepting (or withdrawing from) the Exchange Offer. The Trust will furnish you
with copies of such documents at your request. All other requests for
information relating to the Exchange Offer shall be directed to the Trust,
Attention: Monte N. Redman.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Monte N. Redman of the Trust, and such
other person or persons as the Trust or the Corporation may request, daily (and
more frequently during the week immediately preceding the Expiration Date and if
otherwise requested by the Corporation or the Trust) up to and including the
Expiration Date, as to the aggregate liquidation amount of Original Capital
Securities which have been tendered pursuant to the Exchange Offer and the items
received by you pursuant to this Agreement, separately reporting and giving
cumulative totals as to items properly received and items improperly received.
In addition, you will also inform, and cooperate in making available to, the
Trust or the Corporation or any such other person or persons, upon oral request
made from time to time on or prior to the Expiration Date, such other
information as it or such person reasonably requests. Such cooperation shall
include, without limitation, the granting by you to the Trust or the
Corporation, and such person as the Trust or the Corporation may request, of
access to those persons on your staff who are responsible for receiving tenders,
in order to ensure that immediately prior to the Expiration Date the Trust or
the Corporation shall have received information in sufficient detail to enable
it to decide whether to extend the Exchange Offer. You shall prepare a final
list of all persons whose tenders were accepted, the aggregate liquidation
amount of Original Capital Securities tendered, the aggregate liquidation amount
of Original Capital Securities accepted and deliver said list to the Trust
promptly after the Expiration Date.
6
<PAGE>
Wilmington Trust Company
___________, 2000
17. Letters of Transmittal and Notices of Guaranteed Delivery
received by you shall be stamped by you as to the date and the time of receipt
thereof and shall be preserved by you for a period of time at least equal to the
period of time you preserve other records pertaining to the transfer of
securities.
18. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any, borrowed by the
Trust, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to the compensation set forth on Schedule I attached hereto, plus
reasonable out-of-pocket expenses and reasonable attorneys' fees, incurred in
connection with your services hereunder, within thirty days following receipt by
the Corporation of an itemized statement of such expenses and fees in reasonable
detail.
20. (a) The Trust covenants and agrees to indemnify and hold you
(which for purposes of this paragraph shall include your
directors, officers and employees) harmless in your
individual capacity and in your capacity as Exchange Agent
hereunder from and against any and all loss, liability,
cost, damage, expense and claim, including but not limited
to reasonable attorneys' fees and expenses, incurred by you
as a result of, arising out of or in connection with the
performance by you of your duties under this Agreement or
the compliance by you with the instructions set forth herein
or delivered hereunder; provided, however, that the Trust
shall not be liable for indemnification or otherwise, or
hold you harmless, for any loss, liability, cost, damage,
expense or claim arising out of your bad faith, gross
negligence or willful misconduct. In no case shall the Trust
be liable under this indemnity with respect to any claim
against you unless the Trust shall be notified by you, by
letter or by facsimile confirmed by letter, of the written
assertion of a claim against you or of any other action
commenced against you, promptly after you shall have
received any such written assertion or notice of
commencement of action. The Trust shall be entitled to
participate at its own expense in the defense of any such
claim or other action, and, if the Trust so elects, the
Trust may assume the defense of any suit brought to enforce
any such claim; provided, that the Trust shall not be
entitled to assume the defense of any such action if the
named parties to such action include both the Trust and you
and representation of both parties by the same legal counsel
would, in the written opinion of counsel to you, be
inappropriate due to actual or potential conflicting
interests between them. In the event that the Trust shall
assume the defense of any such suit or threatened action in
respect of which indemnification may be sought hereunder,
the Trust shall not be liable for the fees and expenses of
any counsel thereafter retained by you. The Trust shall not
be liable under this paragraph for the fees and expenses of
more than one legal counsel for you.
7
<PAGE>
Wilmington Trust Company
___________, 2000
(b) You agree that, without the prior written consent of the
Trust (which consent shall not be unreasonably withheld),
you will not settle, compromise or consent to the entry of
any pending or threatened claim, action, or proceeding in
respect of which indemnification could be sought in
accordance with the indemnification provisions of this
Agreement (whether or not you or the Trust or any of its
trustees or controlling persons is an actual or potential
party to such claim, action or proceeding), unless such
settlement, compromise or consent includes an unconditional
release of the Trust and its trustees and controlling
persons from all liability arising out of such claim,
action or proceeding.
21. The Trust understands that you are required in certain instances
to deduct 31% of the amounts to be paid with respect to interest paid on the
Exchange Capital Securities and proceeds from the sale, exchange, redemption or
retirement of the Exchange Capital Securities from holders who have not supplied
their correct Taxpayer Identification Number or required certification. You will
remit any such funds to the Internal Revenue Service in accordance with
applicable regulations.
22. You shall notify the Trust of the amount of any transfer taxes
that you have actual knowledge are payable in respect of the exchange of
Original Capital Securities.
23. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto, and no other person shall
have any rights hereunder.
24. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
25. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
26. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
27. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or facsimile number set forth below:
8
<PAGE>
Wilmington Trust Company
___________, 2000
If to the Trust: Astoria Capital Trust I
One Astoria Federal Plaza
Lake Success, New York 11042
Facsimile: (516) 327-7860
Attention: Monte N. Redman
If to the Exchange Agent: Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Facsimile: (302) 651-1576
Attention: Corporate Trust Administration -
Astoria Capital Trust I Exchange Offer
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 19, 20 and 21 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Trust any certificates for Securities, funds or property then held by you as
Exchange Agent under this Agreement.
29. This Agreement shall be binding and effective as of the date
hereof.
9
<PAGE>
Wilmington Trust Company
___________, 2000
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
ASTORIA CAPITAL TRUST I
By:
----------------------------------------------
Monte N. Redman
Administrative Trustee
Accepted as the date
first above written:
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Property
Trustee, as Exchange Agent
By:
----------------------------------------------
Name:
Title:
10
<PAGE>
Wilmington Trust Company
___________, 2000
SCHEDULE I
FEES
Wilmington Trust Company
Corporate Trust Department
SCHEDULE OF FEES
FOR
ASTORIA CAPITAL TRUST I
9.75% CAPITAL SECURITIES, SERIES B
1. Exchange Agent $3,500
Covers review of the Letter of Transmittal, the Exchange Agent
Agreement and other related documentation; establishment of accounts and systems
link with depositories; operational and administrative charges and time spent in
connection with the review, receipt and processing of Letters of Transmittal,
Agent's Messages and Notices of Guaranteed Delivery.
Note: The fees set forth in this schedule are subject to review of
documentation and our internal credit and conflict review. The fees are also
subject to change should circumstances warrant. Out-of-pocket expenses and
disbursements, including reasonable counsel fees, incurred in the performance of
our duties will be added to the billed fees. We may place orders to buy/sell
financial instruments with outside broker-dealers that we select, as well as
Wilmington Trust Company or its affiliates. These transactions (for which normal
and customary spreads will be earned in addition to the charges quoted above)
will be executed on a riskless principal basis solely for your account(s) and
without recourse to us or our affiliates. If you choose to invest in any mutual
fund, Wilmington Trust Company and/or our affiliates may earn service
fees/expenses associated with these funds as disclosed in the mutual fund
prospectus provided to you, in addition to the charges quoted above. We will
provide periodic account statements describing transactions executed for your
account(s). Trade confirms will be available upon your request at no additional
charge. If a deal should fail to close for reasons beyond our control, we
reserve the right to charge our acceptance plus reimbursement for legal fees
incurred.
Fees for any services not specifically covered in this or other applicable
schedules will be based on an appraisal of services rendered.
11
<PAGE>
EXHIBIT 99.4
ASTORIA CAPITAL TRUST I
Offer for all Outstanding
9.75% Capital Securities, Series A
in Exchange for
9.75% Capital Securities, Series B
To: Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
Astoria Capital Trust I (the "Trust") is offering, upon and subject to the
terms and conditions set forth in a prospectus dated __________, 2000 (as the
same maybe amended or supplemented from time to time, the "Prospectus"), and the
enclosed letter of transmittal (the "Letter of Transmittal"), to exchange (the
"Exchange Offer") its 9.75% Capital Securities, Series B (the "Exchange Capital
Securities") for any and all of its outstanding 9.75% Capital Securities, Series
A (the "Original Capital Securities). The Exchange Offer is being made in order
to satisfy certain obligations of the Trust and Astoria Financial Corporation
(the "Corporation") contained in the registration rights agreement dated October
25, 1999, among the Trust, the Corporation and the initial purchaser referred to
therein.
We are requesting that you contact your clients for whom you hold Original
Capital Securities regarding the Exchange Offer. For your information and for
forwarding to your clients for whom you hold Original Capital Securities
registered in your name or in the name of your nominee, or who hold Original
Capital Securities registered in their own names, we are enclosing the following
documents:
1. The Prospectus dated __________, 2000;
2. The Letter of Transmittal for your use and for the information
(or the use, where relevant) of your clients;
3. A Notice of Guaranteed Delivery to be used to accept the
Exchange Offer if certificates for Original Capital Securities
are not immediately available or time will not permit all
required documents to reach the Exchange Agent prior to the
Expiration Date (as defined below) or if the procedure for
book-entry transfer cannot be completed on a timely basis;
4. A form of letter which may be sent to your clients for whose
account you hold Original Capital Securities registered in your
name or the name of your nominee, with space provided for
obtaining such clients' instructions with regard to the Exchange
Offer; and
5. Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.
Your prompt action is requested. The Exchange Offer will expire at 5:00
p.m., New York City time, on __________, 2000, or on such later date or time to
which the Corporation or the Trust may extend the Exchange Offer (the
"Expiration Date"). The Original Capital Securities tendered pursuant to the
Exchange Offer may be withdrawn at any time before the Expiration Date.
1
<PAGE>
To participate in the Exchange Offer, your clients must tender by having
you execute for them a book- entry transfer of tendered Original Capital
Securities into the account of Wilmington Trust Company, as Exchange Agent, at
The Depository Trust Company ("DTC") using DTC's Automated Tender Offer Program.
Your clients may also tender by having certificates representing the Original
Capital Securities, a duly executed and properly completed Letter of Transmittal
(or facsimile thereof), with any required signature guarantees, and any other
required documents delivered to such Exchange Agent. The Letter of Transmittal
and the Prospectus should be consulted for complete instructions and information
about participation in the Exchange Offer.
If holders of Original Capital Securities wish to tender, but it is
impracticable for them to forward their certificates for Original Capital
Securities prior to the expiration of the Exchange Offer or to comply with the
book-entry transfer procedures on a timely basis, a tender may be effected by
following the guaranteed delivery procedures described in the Prospectus under
"The Exchange Offer -- Procedures for Tendering Original Capital Securities --
Guaranteed Delivery."
The Trust will, upon request, reimburse brokers, dealers, commercial banks
and trust companies for reasonable and necessary costs and expenses incurred by
them in forwarding the Prospectus and the related documents to the beneficial
owners of Original Capital Securities held by them as nominee or in a fiduciary
capacity. The Trust will pay or cause to be paid all stock transfer taxes
applicable to the exchange of Original Capital Securities pursuant to the
Exchange Offer, except as set forth in Instruction 13 of the Letter of
Transmittal.
Any inquiries you may have with respect to the Exchange Offer, or requests
for additional copies of the enclosed materials, should be directed to
Wilmington Trust Company, the Exchange Agent for the Original Capital
Securities, at its address and telephone number set forth on the front of the
Letter of Transmittal.
Very truly yours,
ASTORIA CAPITAL TRUST I
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY
PERSON AS AN AGENT OF THE TRUST OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY
OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF EITHER OF
THEM WITH RESPECT TO THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS EXPRESSLY MADE IN
THE PROSPECTUS OR THE LETTER OF TRANSMITTAL.
Enclosures
2
<PAGE>
EXHIBIT 99.5
ASTORIA CAPITAL TRUST I
Offer for all Outstanding
9.75% Capital Securities, Series A
in Exchange for
9.75% Capital Securities, Series B
To Our Clients:
Enclosed for you consideration is a prospectus dated ____________,
2000 (as the same maybe amended and supplemented from time to time, the
"Prospectus"), and the related letter of transmittal (the "Letter of
Transmittal"), relating to the offer (the "Exchange Offer") of Astoria Capital
Trust I (the "Trust") and Astoria Financial Corporation (the "Corporation") to
exchange the Trust's 9.75% Capital Securities, Series B (the "Exchange Capital
Securities") for any and all of the Trust's outstanding 9.75% Capital
Securities, Series A (the "Original Capital Securities"), upon the terms and
subject to the conditions described in the Prospectus. The Exchange Offer is
being made in order to satisfy certain obligations of the Trust and the
Corporation contained in the Registration Rights Agreement dated October 25,
1999, among the Trust, the Corporation and Sandler O'Neill & Partners, L.P.
This material is being forwarded to you as the beneficial owner of
the Original Capital Securities carried by us in your account but not registered
in your name. A tender of such Original Capital Securities may only be made by
us as the holder of record and pursuant to your instructions.
Accordingly, we request instructions as to whether you wish us to
tender on your behalf the Original Capital Securities held by us for your
account, pursuant to the terms and conditions set forth in the enclosed
Prospectus and Letter of Transmittal.
Your instructions should be forwarded to us as promptly as possible
in order to permit us to tender the Original Capital Securities on your behalf
in accordance with the provisions of the Exchange Offer. The Exchange Offer
shall expire at 5:00 p.m., New York City time, on ____________, 2000, or on such
later date or time to which the Corporation or the Trust may extend the Exchange
Offer. Any Original Capital Securities tendered pursuant to the Exchange Offer
may be withdrawn at any time before the Expiration Date.
Your attention is directed to the following:
1. The Exchange Offer is for any and all Original Capital
Securities.
2. The Exchange Offer is subject to certain conditions set
forth in the Prospectus in the section captioned "The
Exchange Offer--Conditions to the Exchange Offer."
3. Any transfer taxes incident to the transfer of Original
Capital Securities from the holder to the Corporation
will be paid by the Corporation, except as otherwise
provided in the Instructions in the Letter of
Transmittal.
4. The Exchange Offer expires at 5:00 p.m., New York City
time, on ____________, 2000, or on such later date or
time to which the Corporation or the Trust may extend the
Exchange Offer.
If you wish to have us tender your Original Capital Securities,
please so instruct us by completing, executing and returning to us the
instruction form attached to this letter. The Letter of Transmittal is furnished
to you for information only and may not be used directly by you to tender
Original Capital Securities.
1
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE EXCHANGE OFFER
The undersigned acknowledge(s) receipt of your letter and the
enclosed material referred to therein relating to the Exchange Offer made by
Astoria Capital Trust I with respect to its Original Capital Securities.
This will instruct you to tender the Original Capital Securities held
by you for the account of the undersigned, upon and subject to the terms and
conditions set forth in the Prospectus and the related Letter of Transmittal.
Please tender the Original Capital Securities held by you for my
account as indicated below:
Aggregate Liquidation Amount of
-------------------------------
Original Capital Securities Tendered*
------------------------------------
9.75% Original Capital Securities ------------------------------------
|_| Please do not tender any Original
Capital Securities held by you for
my account.
Dated: , 2000
--------------------------- ------------------------------------
------------------------------------
Signature(s)
------------------------------------
Please print name(s) here
------------------------------------
------------------------------------
Addresses
------------------------------------
Area Code and Telephone Number
------------------------------------
Tax Identification or Social
Security No(s).
None of the Original Capital Securities held by us for your account
will be tendered unless we receive written instructions from you to do so.
Unless a specific contrary instruction is given in the space provided, your
signature (s) hereon shall constitute an instruction to us to tender all the
Original Capital Securities held by us for your account.
- -------------------
* Must be in denominations of a Liquidation Amount of $1,000 and in any integral
multiple thereof, and not less than $100,000 aggregate Liquidation Amount.
2
