EXHIBIT 4.4
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FIRST SUPPLEMENTAL INDENTURE
Dated as of October 1, 2004
SUPPLEMENTING AND AMENDING
THE
INDENTURE
Dated as of June 3, 1997
Between
GREENPOINT FINANCIAL CORP.
AND
THE BANK OF NEW YORK,
as Trustee
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9.10% Junior Subordinated Debentures due 2027
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FIRST SUPPLEMENTAL INDENTURE (this "First Supplemental Indenture"), dated
as of October 1, 2004, among GreenPoint Financial Corp., a Delaware corporation
(the "Company"), North Fork Bancorporation, Inc., a Delaware corporation ("North
Fork" or "Successor"), and The Bank of New York, a New York banking corporation,
as trustee (the "Trustee").
RECITALS
WHEREAS, the Company has heretofore executed and delivered to the Trustee
that certain Indenture dated as of June 3, 1997 (the "Indenture") providing for
the issuance of its 9.10% Junior Subordinated Debentures due 2027. All
capitalized terms used in this First Supplemental Indenture and not defined
herein shall have the meanings assigned to them in the Indenture.
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as February
15, 2004, by and between the Company and North Fork, the Company is merging with
and into North Fork effective as of 6:00 a.m. New York City time on the date
hereof (the "Merger") under the applicable provisions of Delaware law, with
North Fork being the surviving corporation in the Merger.
WHEREAS, Article Eight of the Indenture provides that in the event the
Company shall consolidate with or merge into a successor company, the successor
company, which must be a corporation, partnership or trust organized and
existing under the laws of the United States or a state thereof or the District
of Columbia, shall expressly assume, by an indenture supplemental to the
Indenture, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if any)
and interest (including any additional interest) on all the Securities and the
performance of every covenant of the Indenture on the part of the Company to be
performed or observed.
WHEREAS, Section 901 of the Indenture provides that the Company and the
Trustee may amend or supplement the Indenture and the Securities without the
consent of any Holder of the Securities to evidence the succession of another
Person to the Company and the assumption by any such successor of the covenants
of the Company under the Indenture and in the Securities.
WHEREAS, the Company has furnished the Trustee with (i) an Officers'
Certificate and (ii) an Opinion of Counsel, providing that the conditions
precedent provided for in the Indenture with respect to this First Supplemental
Indenture have been complied with.
WHEREAS, the Company and North Fork have requested that the Trustee
execute and deliver this First Supplemental Indenture, and all things necessary
to authorize the assumption by the Successor of the Company's obligations under
the Indenture and to make this First Supplemental Indenture when executed by the
parties hereto a valid and binding amendment of and supplement to the Indenture
have been done and performed.
NOW, THEREFORE, for and in consideration of the premises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby mutually covenant
and agree as follows:
SECTION 1. The Successor hereby expressly assumes, from and after the
consummation of the Merger, the due and punctual payment of the principal of
(and premium, if any) and interest (including any additional interest) on all
the Securities and the performance of every covenant of the Indenture on the
part of the Company to be performed or observed.
SECTION 2. The Successor shall, from and after the consummation of the
Merger, by virtue of the aforesaid assumption and the delivery of this First
Supplemental Indenture, succeed to, and be substituted for, and may exercise
every right and power of, the Company under the Indenture with the same effect
as if the Successor had been named as the Company in the Indenture.
SECTION 3. Each of the Company and the Successor hereby represents and
warrants that (a) it has all necessary power and authority to execute and
deliver this First Supplemental Indenture and to perform the Indenture, (b) the
Successor will be the successor by merger to the Company pursuant to a valid
merger effected in accordance with applicable law, (c) it is a corporation
organized and existing under the laws of the State of Delaware and (d) this
First Supplemental Indenture is executed and delivered pursuant to Article Eight
and Section 901 of the Indenture and does not require the consent of the Holders
of Securities.
SECTION 4. All covenants and agreements in this First Supplemental
Indenture made by the Successor shall bind its successors and assigns, whether
so expressed or not.
SECTION 5. Notices to the Company under Section 105 shall be made as
follows:
If to the Company:
North Fork Bancorporation, Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Fax: 000-000-0000
With a copy to:
Skadden, Arps Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.
Fax: (000) 000-0000
SECTION 6. This First Supplemental Indenture shall become effective on the
date the Merger becomes effective and duly executed counterparts hereof shall
have been signed and delivered by the Trustee, the Company and North Fork.
SECTION 7. In case any provision in this First Supplemental Indenture
shall be invalid, illegal or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 8. Nothing in this First Supplemental Indenture, express or
implied, shall give to any Person, other than the parties hereto and their
successors under the Indenture and the Holders of the Securities, any benefit or
any legal or equitable right, remedy or claim under the Indenture.
SECTION 9. This First Supplemental Indenture supplements the Indenture and
shall be a part and subject to all the terms thereof. Except as supplemented
hereby, the Indenture shall continue in full force and effect.
SECTION 10. This First Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11. This First Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 12. The Trustee makes no representations as to the validity or
sufficiency of this First Supplemental Indenture. The recitals and statements
herein are deemed to be those of North Fork and the Company and not of the
Trustee.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, all as of the day and year first above written.
NORTH FORK BANCORPORATION, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
GREENPOINT FINANCIAL CORP.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
THE BANK OF NEW YORK, AS TRUSTEE
By: /s/ Xxxxx Xxxxxxxxx-Xxxxxx
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Name: Xxxxx Xxxxxxxxx-Xxxxxx
Title: Vice President
