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EXHIBIT 4.8
EXECUTION COPY
NORTH FORK CAPITAL TRUST I
$100,000,000
8.70% Capital Trust Pass-through Securities(SM)
(TRUPS(SM))
(Liquidation Amount $1,000 per Capital Security)
Fully and Unconditionally Guaranteed
by
NORTH FORK BANCORPORATION, INC.
REGISTRATION AGREEMENT
New York, New York
December 31, 1996
Salomon Brothers Inc
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
North Fork Capital Trust I, a Delaware statutory business
trust (the "Trust"), and North Fork Bancorporation, Inc., a Delaware
corporation (the "Company"), as guarantor, propose to issue and sell to Salomon
Brothers Inc and ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (the "Purchasers"), upon the
terms set forth in a purchase agreement of even date herewith (the "Purchase
Agreement"), 100,000 of the Trust's 8.70% Capital Trust Pass-through
Securities, liquidation amount $1,000 per Capital Trust Pass-through Security
(the "Capital Securities" and together with the guarantee by the Company of the
payment of the Capital Securities to the extent set forth in the Guarantee, the
"Pass-through Securities") (the "Initial Placement"). The proceeds of the sale
by the Trust of the Pass-through Securities and its 8.70% Common Securities,
liquidation amount $1,000 per Common Security (the "Common Securities"), are to
be invested in the 8.70% Junior Subordinated Debt Securities of the Company
having an aggregate principal amount equal to the aggregate liquidation amount
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of the Capital Securities and the Common Securities (the "Junior Subordinated
Debt Securities"). As an inducement to the Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to your obligations
thereunder, the Trust and the Company agree with you, (i) for your benefit and
(ii) for the benefit of the holders from time to time (each of the foregoing a
"Holder" and together the "Holders") of the Securities (as defined herein) or
the Exchange Securities (as defined herein), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Additional Distributions" has the meaning given such term in
Section 7(a) hereof.
"Liquidated Damages" has the meaning given such term in
Section 7(a) hereof.
"Affiliate" of any specified person means any other person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person.
"Closing Date" has the meaning given such term in the
Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Declaration" means the Amended and Restated Declaration of
Trust relating to the Capital Securities and the Exchange Capital Securities
dated as of December 31, 1996, among the Company, as Depositor, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as administrative trustees, the Property Trustee and
Bankers Trust (Delaware), a Delaware corporation, as Delaware trustee, as the
same may be amended from time to time in accordance with the terms thereof.
"Distribution Event" shall mean the distribution of Junior
Subordinated Debt Securities or Exchange Junior
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Subordinated Debt Securities, as the case may be, to the holders of Capital
Securities or Exchange Capital Securities, as the case may be, as provided in
the Declaration.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Capital Securities" means securities of the Trust to
be issued under the Declaration and which are identical in all material
respects to the Capital Securities (except that the distribution rate step-up
provisions and the transfer restrictions will be modified or eliminated, as
appropriate).
"Exchange Guarantee" means the guarantee by the Company of the
Exchange Capital Securities, identical in all material respects to the
Guarantee.
"Exchange Junior Subordinated Debt Securities" means debt
securities of the Company to be issued under the Junior Subordinated Indenture
and which are identical in all material respects to the Junior Subordinated
Debt Securities (except that the interest rate step-up provisions and the
transfer restrictions will be modified or eliminated, as appropriate).
"Exchange Offer Registration Period" means the 180-day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration
statement of the Trust and the Company on an appropriate form under the Act
with respect to the Registered Exchange Offer (and, if a Distribution Event
shall not have occurred prior to the effectiveness of such Exchange Offer
Registration Statement and the Company shall not have elected to include the
Junior Subordinated Debt Securities held by the Trust in the Registered
Exchange Offer pursuant to Section 2(g) hereof, with respect to the
distribution of the Junior Subordinated Debt Securities upon the occurrence of
a Distribution Event), and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
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"Exchange Pass-through Securities" means the Exchange Capital
Securities together with the Exchange Guarantee.
"Exchange Securities" means (i) if a Distribution Event shall
not have occurred prior to the Registered Exchange Offer, (a) the Exchange
Pass-through Securities and (b) if the Company shall elect to include the
Junior Subordinated Debt Securities held by the Trust in the Registered
Exchange Offer pursuant to Section 2(g) hereof, the Exchange Junior
Subordinated Debt Securities or (ii) if a Distribution Event shall have
occurred prior to the Registered Exchange Offer, the Exchange Junior
Subordinated Debt Securities.
"Exchanging Dealer" means any Holder (which may include any
Purchaser) which is a broker-dealer electing to exchange Securities acquired
for its own account as a result of market-making activities or other trading
activities for Exchange Securities.
"Final Memorandum" has the meaning set forth in the Purchase
Agreement.
"Guarantee" means the guarantee by the Company of the Capital
Securities and the Common Securities pursuant to the Guarantee Agreement dated
as of December 31, 1996 between the Company and the Guarantee Trustee.
"Guarantee Trustee", "Indenture Trustee" and "Property
Trustee" each mean Bankers Trust Company, a New York banking corporation.
"Holder" has the meaning set forth in the preamble hereto.
"Junior Subordinated Indenture" means the Junior Subordinated
Indenture relating to the Junior Subordinated Debt Securities and the Exchange
Junior Subordinated Debt Securities dated as of December 31, 1996 between the
Company and the Indenture Trustee.
"Initial Placement" has the meaning set forth in the preamble
hereto.
"Majority Holders" means the Holders of a majority of the
aggregate liquidation amount or of the aggregate
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principal amount, as applicable, of securities registered under a Registration
Statement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an
underwritten offering.
"Prospectus" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Securities or the Exchange Securities, covered by such Registration
Statement, and all amendments and supplements to the Prospectus, including
post-effective amendments.
"Registered Exchange Offer" means the proposed offer to the
Holders to issue and deliver to such Holders a like liquidation amount or
principal amount, as the case may be, of the Exchange Securities, in exchange
for (i) if a Distribution Event shall not have occurred, (a) the Pass-Through
Securities and (b) if the Company shall elect to include the Junior
Subordinated Debt Securities held by the Trust in the Registered Exchange Offer
pursuant to Section 2(g) hereof, the Junior Subordinated Debt Securities or
(ii) if a Distribution Event shall have occurred, the Junior Subordinated Debt
Securities.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the Exchange Securities pursuant to the provisions of this Agreement, and
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Securities" means (i) if a Distribution Event shall not have
occurred, the Pass-through Securities and the Junior Subordinated Debt
Securities or (ii) if a Distribution Event shall have occurred, the Junior
Subordinated Debt Securities.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
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"Shelf Registration Period" has the meaning given such term in
Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Trust and the Company pursuant to the provisions of Section 3
hereof which covers some or all of the Securities or the Exchange Securities,
as applicable, on an appropriate form under Rule 415 under the Act, or any
similar rule that may be adopted by the Commission, and amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Tax Contingency" has the meaning given such term in Section
2(b) hereof.
"Tax Contingency Extension" has the meaning given such term in
Section 7(a) hereof.
"Trustee" means the Guarantee Trustee, the Indenture Trustee
or the Property Trustee, as applicable.
"Underwriter" means any underwriter of Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of Exchange Securities
by Exchanging Dealers. (a) The Trust and the Company shall prepare and, not
later than 120 days following the Closing Date, shall file with the Commission
the Exchange Offer Registration Statement. The Trust and the Company shall use
their best efforts to cause the Exchange Offer Registration Statement to become
effective under the Act within 180 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Trust and the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for Exchange Securities
(assuming that such Holder is not an affiliate of the Trust or the Company
within the meaning of the Act, acquires the Exchange Securities in the ordinary
course of such Holder's business and has no arrangements with any person to
participate in the distribution (within the meaning of the Act) of the Exchange
Securities) to transfer such Exchange Securities from and after their receipt
without any
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limitations or restrictions under the Act and without material restrictions
under the securities laws of a substantial proportion of the several states of
the United States. Notwithstanding the foregoing (but subject to the provisions
of clause (ii) of Section 3 and clause (a)(iii) of Section 7), in the event
that the Company shall determine in good faith that (i) there is a reasonable
likelihood that, or (ii) a material uncertainty exists as to whether,
consummation of the Registered Exchange Offer would result in an adverse tax
consequence to the Trust or the Company (a "Tax Contingency"), the Trust and
the Company may elect to delay commencement or consummation of the Registered
Exchange Offer until such Tax Contingency shall no longer exist or, if the
Company shall determine in good faith that such Tax Contingency is in existence
on the 240th day following the Closing Date, to terminate the Registered
Exchange Offer.
(c) In connection with the Registered Exchange Offer, the
Trust and the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
30 days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law);
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City
of New York; and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Trust and the Company shall:
(i) accept for exchange all Securities validly tendered and
not withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
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(iii) cause the Trustee promptly to authenticate and deliver
to each Holder of tendered Securities, Exchange Securities equal in
liquidation amount or principal amount, as the case may be, to the
Securities of such Holder so accepted for exchange therefor.
(e) The Purchasers and the Trust and the Company acknowledge
that, pursuant to interpretations by the Commission's staff of Section 5 of the
Act, and in the absence of an applicable exemption therefrom, each Exchanging
Dealer is required to deliver a Prospectus in connection with a sale of any
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer in exchange for Securities acquired for its own
account as a result of market-making activities or other trading activities.
Accordingly, the Trust and the Company shall:
(i) include the information set forth in Annex A hereto on the
cover of the Exchange Offer Registration Statement, in Annex B hereto
in the forepart of the Exchange Offer Registration Statement in a
section setting forth details of the Registered Exchange Offer, and in
Annex C hereto in the underwriting or plan of distribution section of
the Prospectus forming a part of the Exchange Offer Registration
Statement, and include the information set forth in Annex D hereto in
the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; and
(ii) use their best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act during the
Exchange Offer Registration Period for delivery of the Prospectus
forming a part thereof by Exchanging Dealers in connection with sales
of Exchange Securities received pursuant to the Registered Exchange
Offer, as contemplated by Section 4(h) below.
(f) In the event that the Purchasers determine that they are
not eligible to participate in the Registered Exchange Offer with respect to
the exchange of Securities constituting any portion of their initial unsold
allotment, at the request of the Purchasers, the Company shall issue and
deliver to the Purchasers, in exchange for such Securities, a like principal
amount of Exchange Securities (provided that such Exchange Securities shall
include legends with respect to restrictions on transfer), and the Company
shall, starting on the date of effectiveness of the Exchange
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Offer Registration Statement and ending on the close of business on the 180th
day following such date, make available as many copies of the Exchange Offer
Registration Statement prospectus, as amended or supplemented, as reasonably
requested by the Purchasers. The Trust and the Company shall seek to cause the
CUSIP Service Bureau to issue the same CUSIP number for such Exchange
Securities as for Exchange Securities issued pursuant to the Registered
Exchange Offer. The Purchasers agree to promptly notify the Company in writing
following the resale of their initial allotment of Securities.
(g) Notwithstanding anything in this Agreement to the
contrary, if a Distribution Event shall not have occurred prior to the
Registered Exchange Offer, the Company may offer to, and the Trust shall agree
to, exchange the Junior Subordinated Debt Securities held by the Trust for an
identical principal amount of Exchange Junior Subordinated Debt Securities as
part of the Registered Exchange Offer; provided, however that, until a
Distribution Event shall have occurred, such Exchange Junior Subordinated Debt
Securities shall include appropriate legends with respect to transfer
restrictions.
3. Shelf Registration. If, (i) because of any change in law
or applicable interpretations thereof by the Commission's staff, the Trust and
the Company determine upon advice of their outside counsel that they are not
permitted to effect the Registered Exchange Offer as contemplated by Section 2
hereof, or (ii) for any other reason the Registered Exchange Offer is not
consummated within 225 days (or, if the Company shall determine in good faith
that a Tax Contingency exists on such 225th day, within 240 days) of the
Closing Date, or (iii) in the event that the Purchasers participate in the
Registered Exchange Offer or acquire Exchange Securities pursuant to Section
2(f) hereof and the Purchasers do not receive freely tradeable Exchange
Securities in exchange for Securities constituting any portion of an unsold
allotment (it being understood that, for purposes of this Section 3, (x) the
requirement that the Purchasers deliver a Prospectus containing the information
required by Items 507 and/or 508 of Regulation S-K under the Act in connection
with sales of Exchange Securities acquired in exchange for such Securities
shall result in such Exchange Securities being not "freely tradeable" but (y)
the requirement that an Exchanging Dealer deliver a Prospectus in connection
with sales of Exchange Securities acquired in the Registered Exchange Offer in
exchange for Securities ac-
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quired as a result of market-making activities or other trading activities
shall not result in such Exchange Securities being not "freely tradeable"), the
following provisions shall apply:
(a) The Trust and the Company shall, as promptly as
practicable (but in no event more than 60 days after so required or requested
pursuant to this Section 3), file with the Commission and thereafter use their
best efforts to cause to be declared effective under the Act a Shelf
Registration Statement relating to the offer and sale of the Securities or the
Exchange Securities, as applicable, by the Holders from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; provided, however, that with
respect to Exchange Securities received by the Purchasers in exchange for
Securities constituting any portion of an unsold allotment, the Trust and the
Company may, if permitted by current interpretations by the Commission's staff,
file a post-effective amendment to the Exchange Offer Registration Statement
containing the information required by Regulation S-K Items 507 and/or 508, as
applicable, in satisfaction of their obligations under this paragraph (a) with
respect thereto, and any such Exchange Offer Registration Statement, as so
amended, shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
(b) The Trust and the Company shall use their best efforts to
keep the Shelf Registration Statement continuously effective in order to permit
the Prospectus forming part thereof to be usable by Holders for a period of (i)
three years (or, if Rule 144(k) is amended to provide a shorter restrictive
period, such shorter period) or (ii) 180 days in the event that the Shelf
Registration Statement is requested by the Purchasers pursuant to Section
3(iii), from the Closing Date or such shorter period that will terminate when
all the Securities or Exchange Securities, as applicable, covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement (in any such case, such period being called the "Shelf Registration
Period").
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4. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent specified, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Trust and the Company shall furnish to each
Purchaser, prior to the filing thereof with the Commission, a copy of
any Shelf Registration Statement and any Exchange Offer Registration
Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein and shall use
their best efforts to reflect in each such document, when so filed
with the Commission, such comments as you reasonably may propose.
(b) The Trust and the Company shall ensure that (i) any
Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto complies
in all material respects with the Act and the rules and regulations
thereunder, (ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming part of any Registration Statement, and
any amendment or supplement to such Prospectus, does not, during the
period when delivery thereof is required, include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements, in the light of the circumstances under which
they were made, not misleading.
(c) (1) The Trust and the Company shall advise the Purchasers
and, in the case of a Shelf Registration Statement, the Holders of
securities covered thereby to the extent specified in (i) below, and,
if requested by you or any such Holder, confirm such advice in
writing:
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Registration
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Statement or the Prospectus included therein or for additional
information.
(2) The Trust and the Company shall advise the Purchasers
and, in the case of a Shelf Registration Statement, the Holders of
securities covered thereby, and, in the case of an Exchange Offer
Registration Statement, any Exchanging Dealer which has provided in
writing to the Trust and the Company a telephone or facsimile number
and address for notices, and, if requested by you or any such Holder
or Exchanging Dealer, confirm such advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose;
(ii) of the receipt by the Company or the Trust of any
notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the suspension of the use of the Prospectus.
(d) The Trust and the Company shall use their best efforts to
obtain the withdrawal of any order suspending the effectiveness or use
of any Registration Statement at the earliest possible time.
(e) The Trust and the Company shall furnish to each Holder of
securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits (including those incorporated by
reference).
(f) The Trust and the Company shall, during the Shelf
Registration Period, deliver to each Holder of securities included
within the coverage of any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including each preliminary
Prospectus) included in such Shelf Registration Statement and
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any amendment or supplement thereto as such Holder may reasonably
request; and the Trust and the Company consent to the use of the
Prospectus or any amendment or supplement thereto as to which no
notice has been given pursuant to paragraph 4(c)(2) by each of the
selling Holders of securities in connection with the offering and sale
of the securities covered by the Prospectus or any amendment or
supplement thereto.
(g) The Trust and the Company shall furnish to each
Exchanging Dealer which so requests, without charge, at least one copy
of the Exchange Offer Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, any
documents incorporated by reference therein, and, if the Exchanging
Dealer so requests in writing, all exhibits (including those
incorporated by reference).
(h) The Trust and the Company shall, during the Exchange
Offer Registration Period, promptly deliver to each Exchanging Dealer,
without charge, as many copies of the Prospectus included in such
Exchange Offer Registration Statement and any amendment or supplement
thereto as such Exchanging Dealer may reasonably request for delivery
by such Exchanging Dealer in connection with a sale of Exchange
Securities received by it pursuant to the Registered Exchange Offer;
and the Trust and the Company consent to the use of the Prospectus or
any amendment or supplement thereto as to which no notice has been
given pursuant to paragraph 4(c)(2) by any such Exchanging Dealer, as
aforesaid.
(i) Prior to the Registered Exchange Offer or the
effectiveness of a Registration Statement with respect to any other
offering of securities, the Trust and the Company shall, if required
by applicable law, register or qualify or cooperate with the Holders
of securities included therein and their respective counsel in
connection with the registration or qualification of such securities
for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Holders reasonably request in writing and do
any and all other acts or things necessary or advisable to enable the
offer and sale in such United States jurisdictions of the securities
covered by such Registration Statement; provided, however, that
neither the Trust nor the Company will be required to qualify
generally to do business in any jurisdiction where it is not then so
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qualified or to take any action which would subject it to general
service of process or to taxation in any such jurisdiction where it is
not then so subject.
(j) Unless the applicable securities shall be in book-entry
only form, the Trust and the Company shall cooperate with the Holders
of Securities to facilitate the timely preparation and delivery of
certificates representing Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request
prior to sales of securities pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by
paragraphs c(1)(ii) or (c)(2)(iii) above, the Trust and the Company
shall prepare as soon as possible a post-effective amendment to any
Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter
delivered to purchasers of the securities included therein, the
Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(l) The Trust and the Company shall use their best efforts to
cause The Depository Trust Company ("DTC") on the first business day
following the effective date of any Shelf Registration Statement
hereunder or as soon as possible thereafter to remove (i) from any
existing CUSIP number assigned to the Pass-through Securities or
Junior Subordinated Debt Securities, as the case may be, any
designation indicating that such securities are "restricted
securities", which efforts shall include delivery to DTC of a letter
executed by the Trust and the Company substantially in the form of
Annex E hereto and (ii) any other stop or restriction on DTC's system
with respect to such securities. In the event the Trust and the
Company are unable to cause DTC to take the actions described in the
immediately preceding sentence, the Company shall take such actions as
Salomon Brothers Inc may reasonably request to provide, as soon as
practicable, a CUSIP number for the Pass-through Securities or Junior
Subordinated Debt Securities, as the case may be, registered under
such Registration Statement and to cause such CUSIP number
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to be assigned to such securities (or to the maximum aggregate
principal amount of such securities to which such number may be
assigned). Upon compliance with the foregoing requirements of this
Section 4(l), the Trust and the Company shall provide the Trustee with
printed certificates for such securities, in a form eligible for
deposit with DTC.
(m) The Trust and the Company shall use their best efforts to
comply with all applicable rules and regulations of the Commission and
shall make generally available to its security holders as soon as
practicable after the effective date of the applicable Registration
Statement an earnings statement satisfying the provisions of Section
11(a) of the Act.
(n) The Trust and the Company shall cause the Junior
Subordinated Indenture, the Declaration and the Guarantee to be
qualified under the Trust Indenture Act in a timely manner.
(o) The Trust and the Company may require each Holder of
securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Trust and the Company such information regarding such
Holder and the distribution of such securities by such Holder as the
Trust and the Company may from time to time reasonably require for
inclusion in such Registration Statement, and securities of a holder
which does not provide information necessary for inclusion in such
Registration Statement may be omitted from any Shelf Registration
Statement.
(p) The Trust and the Company shall, if reasonably requested,
and in no event more than three times, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf
Registration Statement, such information as the Managing Underwriters
and Majority Holders reasonably agree should be included therein and
shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment.
(q) In the case of any Shelf Registration Statement, the
Trust and the Company shall enter into such agreements (including
underwriting agreements) and take all other appropriate actions in
order to expedite or
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facilitate the registration or the disposition of the Securities or
the Exchange Securities, as the case may be, and in connection
therewith, if an underwriting agreement is entered into, cause the
same to contain indemnification provisions and procedures no less
favorable than those set forth in Section 6 (or such other provisions
and procedures acceptable to the Majority Holders and the Managing
Underwriters, if any) with respect to all parties to be indemnified
pursuant to Section 6.
(r) In the case of any Shelf Registration Statement, the
Trust and the Company shall (i) make reasonably available for
inspection by the Holders of securities to be registered thereunder,
subject to their acceptance of the provisions of this Section 4(r),
any underwriter participating in any distribution pursuant to such
Registration Statement, and any attorney, accountant or other agent
retained by the Holders or any such underwriter all relevant financial
and other records, pertinent corporate documents and properties of the
Trust or the Company and its subsidiaries as shall reasonably be
required in connection with the discharge of their due diligence
obligations; (ii) cause the Company's officers, directors and
employees and any relevant trustee to supply all relevant information
reasonably requested by the Holders or any such underwriter, attorney,
accountant or agent in connection with any such Registration Statement
as is customary for similar due diligence examinations; provided,
however, that, in the case of clause (i) and (ii) above, any
information that is designated in writing by the Trust or the Company,
in good faith, as confidential at the time of delivery of such
information shall be kept confidential by the Holders and any such
underwriter, attorney, accountant or agent, unless such disclosure is
made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality; and
provided further, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Holders
and the other parties entitled thereto by one counsel designated by
and on behalf of such Holders and other parties; (iii) make such
representations and warranties to the Holders of securities registered
thereunder and the underwriters, if any, in form, substance and scope
as
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are customarily made by issuers to underwriters in primary
underwritten offerings and covering such matters as are customarily
covered in representations and warranties requested in primary
underwritten offerings; (iv) obtain opinions of counsel to the Trust
and the Company and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling Holder and
the underwriters, if any, covering such matters and with such
exceptions as are customarily covered or taken in opinions requested
in underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters (it being agreed that the
matters to be covered by such counsel shall include, without
limitation, as of the date of the opinions and as of the effective
date of the Registration Statement or most recent post-effective
amendment thereto, as the case may be, a statement by such counsel
regarding the absence from such Registration Statement and the
Prospectus included therein, as then amended or supplemented,
including the documents incorporated by reference therein, of an
untrue statement of a material fact or the omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading); (v) obtain "cold comfort" letters
and updates thereof from the independent certified public accountants
of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Registration
Statement), addressed to each selling Holder of securities registered
thereunder and the underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings; and (vi)
deliver such documents and certificates as may be reasonably requested
by the Majority Holders and the Managing Underwriters, if any,
including those to evidence compliance with Section 4(k) and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Trust and the Company. The foregoing
actions set forth in clauses (iii), (iv), (v) and (vi) of this Section
4(r) shall be performed at (A) the effectiveness of such Registration
Statement and each post-effective amendment thereto and (B) each
closing under
17
18
any underwriting or similar agreement as and to the extent required
thereunder.
(s) In the case of any Exchange Offer Registration Statement,
if requested by the Purchasers, the Trust and the Company shall (i)
make reasonably available for inspection by the Purchasers, and any
attorney, accountant or other agent retained by the Purchasers, all
relevant financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries or the Trust as
shall reasonably be required in connection with the discharge of their
due diligence obligations; (ii) cause the Company's officers,
directors and employees and any relevant trustee to supply all
relevant information reasonably requested by the Purchasers or any
such attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence
examinations; provided, however, that, in the case of clause (i) and
(ii) above, any information that is designated in writing by the
Company or the Trust, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the
Purchasers and any such attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or required
by law, or such information becomes available to the public generally
or through a third party without an accompanying obligation of
confidentiality; (iii) make such representations and warranties to the
Purchasers, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings and covering
such matters; (iv) obtain opinions of counsel to the Trust and the
Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the
Purchasers and their counsel, addressed to the Purchasers, covering
such matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by the Purchasers or their counsel (it being agreed that the
matters to be covered by such counsel shall include, without
limitation, as of the date of the opinions and as of the effective
date of the Registration Statement or most recent post-effective
amendment thereto, as the case may be, a statement by such counsel
regarding the absence from such Registration Statement and the
Prospectus included therein, as then amended or supple-
18
19
mented, including the documents incorporated by reference therein, of
an untrue statement of a material fact or the omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading); (v) obtain "cold comfort"
letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the
Registration Statement), addressed to the Purchasers, in customary
form and covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten offerings, or
if requested by the Purchasers or their counsel in lieu of a "cold
comfort" letter, an agreed-upon procedures letter under Statement on
Auditing Standards No. 35, covering matters requested by the
Purchasers or their counsel; and (vi) deliver such documents and
certificates as may be reasonably requested by the Purchasers or their
counsel, including those to evidence compliance with Section 4(k) and
with conditions customarily contained in underwriting agreements. The
foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of
this Section 4(s) shall be performed, if requested by the Purchasers,
at the closing of the Registered Exchange Offer and the effective date
of any post-effective amendment to the Exchange Offer Registration
Statement.
5. Registration Expenses. The Trust and the Company shall
bear all expenses incurred in connection with the performance of their
obligations under Sections 2, 3 and 4 hereof and, in the event of any Shelf
Registration Statement, will reimburse the Holders for the reasonable fees and
disbursements of one firm or counsel designated by the Majority Holders to act
as counsel for the Holders in connection therewith, and, in the case of any
Exchange Offer Registration Statement, will reimburse the Purchasers for the
reasonable fees and disbursements of counsel acting in connection therewith.
6. Indemnification and Contribution. (a) In connection with
any Registration Statement, the Company agrees to indemnify and hold harmless
each Holder of securities covered thereby (including any Purchaser and, with
respect to any Prospectus delivery as contemplated in Sec-
19
20
tion 4(h) hereof, each Exchanging Dealer), the directors, officers, employees
and agents of each such Holder and each person who controls any such Holder
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement as originally filed or
in any amendment thereof, or in any preliminary Prospectus or Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that (i) the Company will not be liable in any case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Trust and the Company by or on behalf of any such
Holder specifically for inclusion therein and (ii) such indemnity with respect
to any untrue statement or omission in any preliminary Prospectus relating to a
Shelf Registration Statement shall not inure to the benefit of any Holder from
whom the person asserting any such loss, claim, damage or liability purchased
the securities that are the subject thereof, to the extent that any such loss,
claim, damage or liability of such Holder occurs under the circumstances where
it shall have been determined by a court of competent jurisdiction by final and
nonappealable judgment that (w) the Trust and the Company had previously
furnished copies of the final Prospectus to such Holder, (x) delivery of the
final Prospectus was required by the Act to be made to such person, (y) the
untrue statement or omission of a material fact contained in the preliminary
Prospectus was completely corrected in the final Prospectus and (z) there was
not sent or given to such person, at or prior to the written confirmation of
the sale of such securities to such person, a copy of the final Prospectus.
This indemnity
20
21
agreement will be in addition to any liability which the Trust and the Company
may otherwise have.
The Company also agrees to indemnify or contribute to Losses
(as defined below) of, as provided in Section 6(d), any underwriters of
securities registered under a Shelf Registration Statement, their officers and
directors and each person who controls such underwriters on substantially the
same basis as that of the indemnification of the Purchasers and the selling
Holders provided in this Section 6(a) and shall, if requested by any
underwriter, enter into an underwriting agreement reflecting such agreement, as
provided in Section 4(q) hereof.
(b) Each Holder of securities covered by a Registration
Statement (including the Purchasers and, with respect to any Prospectus
delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer) shall
be required to severally agree to indemnify and hold harmless (i) the Trust and
the Company, (ii) each of the Company's directors, (iii) each of the Company's
officers or any trustee who signs such Registration Statement and (iv) each
person who controls the Company or the Trust within the meaning of either the
Act or the Exchange Act to the same extent as the foregoing indemnity from the
Company to each such Holder, but only with reference to written information
relating to such Holder furnished to the Trust or the Company by or on behalf
of such Holder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above or
paragraph (d) below unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
obligations provided under this Section 6. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's
21
22
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel) (it being understood that the indemnifying party shall not be
liable for the fees, costs and expenses of more than one separate counsel (and,
to the extent necessary, one local counsel in each jurisdiction)), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel (and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses,
22
23
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending the same) (collectively
"Losses") to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement which resulted in such Losses.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on
the one hand, and such indemnified party, on the other hand, in connection with
the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Trust and the
Company shall be deemed to be equal to the total net proceeds from the Initial
Placement (before deducting expenses) as set forth on the cover page of the
Final Memorandum. Benefits received by the Purchasers shall be deemed to be
equal to the total purchase discounts, commissions or compensation as set
forth on the cover page of the Final Memorandum, and benefits received by any
other Holders shall be deemed to be equal to the excess, if any, of the value
to such Holder of receiving Securities or Exchange Securities, as applicable,
registered under the Act over the value to such Holder of holding Securities
not registered under the Act. Benefits received by any underwriter shall be
deemed to be equal to the total underwriting discounts and commissions, as set
forth on the cover page of the Prospectus forming a part of the Registration
Statement which resulted in such Losses. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand. The parties agree that it would not be
just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 6, each person who controls a Holder within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of such Holder shall
23
24
have the same rights to contribution as such Holder, and each person who
controls the Company or the Trust within the meaning of either the Act or the
Exchange Act, each officer of the Company and each trustee of the Trust who
shall have signed the Registration Statement and each director of the Company
and each trustee of the Trust shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The provisions of this Section 6 will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Holder, the Company or the Trust or any of the officers, directors, trustees or
controlling persons referred to in Section 6 hereof, and will survive the sale
by a Holder of securities covered by a Registration Statement.
7. Liquidated Damages and Additional Distributions Under
Certain Circumstances. (a) Liquidated damages ("Liquidated Damages") shall
become payable in respect of the Junior Subordinated Debt Securities (including
in respect of amounts accruing during any Extension Period (as defined in the
Junior Subordinated Indenture)), and corresponding additional distributions
(the "Additional Distributions") shall become payable on the Capital Securities
as follows if any of the following events occur (each such event in clauses (i)
through (iv) below, a "Registration Default"):
(i) if the Exchange Offer Registration Statement is not filed
with the Commission on or prior to the 120th day following the Closing Date;
(ii) if the Exchange Offer Registration Statement is not
declared effective on or prior to the 180th day following the Closing Date;
(iii) if the Registered Exchange Offer is not consummated or
the Shelf Registration Statement is not declared effective on or prior to the
225th day (or, if the Company shall determine in good faith that a Tax
Contingency exists on such 225th day, the 240th day (a "Tax Contingency
Extension")) following the Closing Date; or
(iv) if, after the 225th day (or in the case of a Tax
Contingency Extension, the 240th day) following the Closing Date, and after the
Shelf Registration Statement is
24
25
declared effective, (A) such Shelf Registration Statement ceases to be
effective prior to the end of the Shelf Registration Period (except as
permitted in paragraph (b) of this Section 7); or (B) such Shelf Registration
Statement or the related Prospectus ceases to be useable in connection with
resales of Securities or Exchange Securities, as the case may be, covered by
such Shelf Registration Statement prior to the end of the Shelf Registration
Period (except as permitted in paragraph (b) of this Section 7) because either
(1) any event occurs as a result of which the related Prospectus forming part
of such Shelf Registration Statement would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading or (2) it shall be necessary to amend such Shelf Registration
Statement, or supplement the related Prospectus, to comply with the Securities
Act or the Exchange Act or the respective rules thereunder.
Liquidated Damages and Additional Distributions shall accrue
on the Junior Subordinated Debt Securities and the Capital Securities,
respectively, over and above the interest rate or distribution rate, as the
case may be, set forth in the title to the Junior Subordinated Debt Securities
and the Capital Securities following the occurrence of each Registration
Default set forth in clauses (i), (ii), (iii) and (iv) above from and including
the next day following each such Registration Default, in each case at a rate
equal to 0.25% per annum; provided, however, that the aggregate amount of
Liquidated Damages and Additional Distributions, respectively, payable pursuant
this Section 7(a) will in no event exceed 0.25% per annum. The Liquidated
Damages and the Additional Distributions attributable to each Registration
Default shall cease to accrue from the date such Registration Default is cured.
(b) A Registration Default referred to in Section 7(a)(iv)
shall be deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related Prospectus or (y) the occurrence of other material
events or developments with respect to the Trust or the Company that would need
to be
25
26
described in such Registration Statement or the related Prospectus and (ii) in
the case of clause (y), the Trust and the Company are proceeding promptly and
in good faith to amend or supplement such Registration Statement and related
Prospectus to describe such events; provided, however, that in any case, if
such Registration Default occurs for a continuous period in excess of 45 days,
Liquidated Damages and Additional Distributions shall be payable in accordance
with the above paragraph from the first day of such 45-day period until the
date on which such Registration Default is cured.
(c) Any amounts of Liquidated Damages and Additional
Distributions due pursuant to the foregoing paragraphs will be payable in cash
on June 15 and December 15 each year to the holders of record on the preceding
June 1 and December 1, respectively.
8. Miscellaneous.
(a) No Inconsistent Agreements. Each of the Trust and the
Company has not, as of the date hereof, entered into, nor shall it, on
or after the date hereof, enter into, any agreement with respect to
the Securities that is inconsistent with the rights granted to the
Holders herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, qualified, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the
Trust and the Company have obtained the written consent of the Holders
of at least a majority of the then outstanding aggregate liquidation
amount or principal amount, as the case may be, of Securities (or,
after the consummation of any Exchange Offer in accordance with
Section 2 hereof, of Exchange Securities); provided, however, that,
with respect to any matter that affects the rights of any Purchaser
hereunder, the Trust and the Company shall obtain the written consent
of the Purchasers. Notwithstanding the foregoing (except the
foregoing proviso), a waiver or consent to departure from the
provisions hereof with respect to a matter that relates exclusively to
the rights of Holders whose securities are being sold pursuant to a
Registration Statement and that does not directly or
26
27
indirectly affect the rights of other Holders may be given by the
Majority Holders, determined on the basis of securities being sold
rather than registered under such Registration Statement.
(c) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(1) if to a Holder, at the most current address given
by such holder to the Company in accordance with the
provisions of this Section 8(c), which address initially is,
with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture, with a copy
in like manner to Salomon Brothers Inc;
(2) if to you, initially at the address set forth in
the Purchase Agreement; and
(3) if to the Company or the Trust, initially at the
address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Purchasers, the Trust or the Company by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent
by the Company or the Trust thereto, subsequent Holders of Securities and/or
Exchange Securities. The Trust and the Company hereby agree to extend the
benefits of this Agreement to any Holder of Securities and/or Exchange
Securities and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(e) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall
27
28
be deemed to be an original and all of which taken together shall constitute
one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State.
(h) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Trust or the Company, etc.
Whenever the consent or approval of Holders of a specified percentage of
liquidation amount or principal amount, as the case may be, of Securities or
Exchange Securities is required hereunder, Securities or Exchange Securities,
as applicable, held by the Trust or the Company or their respective Affiliates
(other than subsequent Holders of Securities or Exchange Securities if such
subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such Securities or Exchange Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
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29
Please confirm that the foregoing correctly sets forth the
agreement among the Trust, the Company and you.
Very truly yours,
NORTH FORK CAPITAL TRUST I,
by:
---------------------------
Name:
Title:
NORTH FORK BANCORPORATION, INC.,
by:
---------------------------
Name:
Title:
Accepted in New York, New York
December 31, 1996
SALOMON BROTHERS INC
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
by SALOMON BROTHERS INC
by:
-------------------------
Name:
Title:
29
30
ANNEX A
Annex A
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Trust and the
Company have agreed that, ending on the close of business on the 180th day
following the Expiration Date (as defined herein), it will make this Prospectus
available to any broker-dealer for use in connection with any such resale. See
"Plan of Distribution".
31
ANNEX B
Annex B
Each broker-dealer that receives Exchange Securities for its
own account in exchange for Securities, where such Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
32
ANNEX C
Plan of Distribution
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Securities where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Trust and the Company have agreed that, starting on the
Expiration Date and ending on the close of business on the 180th day following
the Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until , 199 , all dealers effecting transactions in the
Exchange Securities may be required to deliver a prospectus.
The Trust and the Company will not receive any proceeds from
any sale of Exchange Securities by broker-dealers. Exchange Securities
received by broker-dealers for their own account pursuant to the Exchange Offer
may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Securities or a combination of such methods of resale,
at market prices prevailing at the time of resale, at prices related to such
prevailing market prices or at negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were received by it for its
own account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit of any
such resale of Exchange Securities and any commissions or concessions received
by any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that by acknowledging that it
will deliver and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
33
For a period of 180 days after the Expiration Date, the Trust
and the Company will promptly send additional copies of this Prospectus and
any amendment or supplement to this Prospectus to any broker-dealer that
requests such documents in the Letter of Transmittal. The Trust and the
Company have agreed to pay all expenses incident to the Exchange Offer
(including the expenses of one counsel for the holders of the Securities) other
than commissions or concessions of any brokers or dealers and will indemnify
the holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K
Items 507 and/or 508.]
2
34
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
---------------------------------------------
Address:
-----------------------------------------
-----------------------------------------
Rider B
If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Securities. If the undersigned is a broker-dealer
that will receive Exchange Securities for its own account in exchange for
Securities, it represents that the Securities to be exchanged for Exchange
Securities were acquired by it as a result of market-making activities or other
trading activities and acknowledges that it will deliver a prospectus in
connection with any resale of such Exchange Securities; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.
35
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
North Fork Capital Trust I
North Fork Bancorporation, Inc.
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The Depository Trust Company
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Re: 8.70% Capital Trust Pass-through Securities(SM)
(TRUPSSM) (the "Securities") of North Fork Capital
Trust I, fully and unconditionally guaranteed by
North Fork Bancorporation, Inc.
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission
has declared effective a Registration Statement on Form S-3 under the
Securities Act of 1933 with regard to all of the Securities referenced above.
Accordingly, there is no longer any restriction as to whom such Securities may
be sold and any restrictions on the CUSIP designation are no longer appropriate
and may be removed. I understand that upon receipt of this letter, DTC will
remove any stop or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of
further assistance.
NORTH FORK CAPITAL TRUST I,
by:
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Authorized Officer
NORTH FORK BANCORPORATION, INC.,
by:
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Authorized Officer
