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ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION
EMPLOYEE STOCK OWNERSHIP TRUST
LOAN AND SECURITY AGREEMENT
Astoria Financial Corporation
Lake Success, New York
November 18, 1993
Gentlemen:
The undersigned, Nationar, not individually but solely as Trustee under
the Astoria Federal Savings and Loan Association Employee Stock Ownership Trust
(the "Trust") effective November 18, 1993 (the "Borrower"), applies to you for
your commitment, subject to all of the terms and conditions hereof and on the
basis of the representations hereinafter set forth, to make a loan available to
the Borrower as hereinafter set forth. Astoria Financial Corporation is
hereinafter referred to as the "Lender". The term "Company" as used herein
refers to Astoria Federal Savings and Loan Association, as the sponsoring
employer of the Astoria Federal Savings and Loan Association Employee Stock
Ownership Plan (the "ESOP").
SECTION ONE. THE TERM LOAN.
1.1 Amount and Terms. By its acceptance hereof the Lender agrees,
subject to all of the terms and conditions hereof and on the basis of the
representations hereinafter set forth, to make a loan (the "Loan") of up to
thirty-three million, twenty-nine thousand, four hundred and twenty-five dollars
($33,029,425) (the "Commitment"), such proceeds to be used by the Borrower
entirely to acquire shares (the "Shares") of the common stock, par value $.01 of
Astoria Financial Corporation, a Delaware corporation.
The Loan is intended to be an "exempt loan" as described in Section
4975(d) of the Internal Revenue Code of 1986 (the "Code"), as defined in Section
54.4975-7(b) of the Treasury Regulations (the "Regulations"), as described in
Section 408(b)(3) of the Employee Retirement Income Security Act of 1974, as
amended, ("ERISA") and as described in Department of Labor Regulations Section
2550.408b-3 (collectively, the "Exempt Loan Rules").
1.2 The Note. The disbursement of the Loan pursuant to Section 1.1
hereof shall be made against and evidenced by a promissory note of the Borrower
in the form annexed hereto as Exhibit A (the "Note"), such Note to bear interest
as hereinafter provided, and to mature in consecutive annual principal
installments commencing on December 31, 1994 and on the last day of each
December each year thereafter, each such installment to be in an amount equal to
1/12th of the outstanding principal amount of the Loan made under Section 1.1
hereof, except that the final installment in the amount of all principal and
interest not sooner paid shall be due on December 31, 2005, the final maturity
thereof.
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Without regard to the principal amount of the Note stated on its face,
the actual principal amount at any time outstanding and owed by the Borrower on
account of the Note shall be the amount of the disbursement of the Loan made by
the Lender under Section 1.1 hereof less all payments of principal actually
received by the Lender. The amount of such disbursement made by the Lender and
any repayments of principal thereof shall be recorded by the Lender on its books
or records or, at its option, endorsed on the reverse side of the Note by the
Lender and the unpaid principal balance at any time so recorded or endorsed by
the Lender shall be prima facie evidence in any court or other proceedings
brought to enforce the Note of the principal amount remaining unpaid thereon.
1.3 Notwithstanding anything to the contrary contained in this
Agreement or in the Note, the Borrower shall be obligated to make repayments of
the Loan only to the extent that such repayments when added to the repayments
theretofore made during the applicable plan year would not exceed an amount
which would cause the limitations of Section 415 of the Code to be exceeded for
any ESOP participant.
Except as set forth in the next succeeding sentence and to the extent
permitted by applicable law, including, without limitation, the Exempt Loan
Rules, the principal amount of the Loan and any interest thereon shall be
payable solely from contributions (other than contributions of employer
securities) made to the Trust in accordance with the ESOP, and cash dividends
received on the Shares, to enable the Borrower to pay its obligations under the
Loan and from earnings attributable to the Shares and the investment of such
contributions and dividends.
The Lender acknowledges and agrees that it shall have no other recourse
against the Borrower for repayment of the Loan and that it shall have no
recourse against assets of the ESOP included in the Trust other than pursuant to
Sections 3 and 8 hereof.
SECTION TWO. INTEREST AND FEES.
2.1 Interest Rate. The Loan shall bear interest (which the Borrower
hereby promises to pay) prior to maturity (whether by lapse of time,
acceleration otherwise) at a rate per annum equal at all times to 6.0%.
2.2 Basis and Payment Dates. All interest accruing on the Note prior to
maturity shall be due and payable on an annual basis and on the last day of each
December in each year (commencing December 31, 1994) and at maturity (unless
prepaid in whole prior to such date, then on the date of such prepayment in
whole) and interest accruing after maturity shall be due and payable upon
demand. All interest on the Note shall be computed on the basis of a year of 360
days for the actual number of days elapsed.
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SECTION THREE. COLLATERAL.
3.1 Grant of Security Interest-Pledged Shares. The Borrower hereby
grants, pledges and assigns to the Lender 1,321,177 shares of the issued and
outstanding common stock, par value $.01 per share all of which were either (i)
purchased by the Borrower from the proceeds of the disbursement of the Loan;
(ii) acquired by the Borrower with the proceeds of a prior exempt loan within
the meaning of Section 54.4975-7(b) of the Treasury Regulations, and pledged as
collateral for such prior exempt loan, where the balance of such prior exempt
loan has been repaid with the proceeds of the disbursement of the Loan (the
"Pledged Shares" being hereinafter referred to as the "Collateral"). The Pledged
Shares shall be evidenced by a stock certificate. The assignment and pledge
herein granted and provided for is made and given to secure and shall secure the
prompt payment of principal of and interest on the Note as and when the same
becomes due and payable and the payment, observance and performance of any and
all obligations and liabilities arising under or provided for in this Loan and
Security Agreement (the "Agreement") or the Note or any of them in each instance
as the same may be amended modified and whether now existing hereafter arising.
3.2 Further Assurances. The Borrower covenants and agrees that it will
at any time and from time to time as requested by the Lender execute and deliver
such further instruments and do and perform such other acts as the Lender may
reasonably deem necessary or desirable to provide for or perfect the lien of the
Lender in the Collateral hereunder.
3.3 Voting. Upon the occurrence of a Default or an Event of Default
hereunder, the Lender sh all have the right to transfer the Collateral or any
part thereof into its name or into the name of its nominee. The Lender shall not
be entitled to vote the Pledged Shares unless and until an Event of Default has
occurred and so long as the same shall not have been waived by the Lender.
3.4 Partial Releases. The Lender agrees, provided always that no Default
or Event of Default shall have occurred and be continuing, as promptly as is
practicable after December 31 in each year (the period commencing the date
hereof and ending December 31, 1994 and each subsequent 12-month period ending
on December 31 being hereinafter referred to as a "Plan Year"), to release that
number of Pledged Shares then being held to secure the Loan which is equal to
the number of such Pledged Shares held as of the last day of the Plan Year
multiplied by a fraction, the numerator of which is the aggregate amount of all
principal payments made on the Note during the Plan Year and the denominator of
which is the sum of the numerator plus the principal to be paid for all future
years under the Note.
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SECTION FOUR. PAYMENTS.
4.1 Place and Application. All payments of principal, interest, fees
and all other amounts payable hereunder shall be made to the Lender at Xxx
Xxxxxxx Xxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxx Xxxx 00000-0000 for the account of the
Lender ( or at such other place for the account of the Lender as the Lender may
from time to time in writing specify to the Borrower) in immediately available
and freely transferable funds at the place of payment. All payments shall be
paid in full without setoff or counterclaim and without reduction for and free
from any and all taxes, levies, duties, fees, charges, deductions, withholdings,
restrictions or conditions of any nature imposed by any government or any
political subdivision or taxing authority thereof.
4.2 Prepayments. The Borrower shall have the privilege of prepaying in
whole or in part the Note at any time upon giving five (5) Business Days' prior
notice to the Lender, each such prepayment to be made by the payment of the
principal amount to be prepaid and accrued interest thereon to the date fixed
for prepayment. All such prepayments shall be made without premium or penalty.
SECTION FIVE. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Lender as follows:
5.1 The Trust is a duly organized, validly existing employee
stock ownership trust.
5.2 The proceeds of the disbursement of the Loan shall be applied in
their entirety to the payment of the purchase price for the Pledged Shares.
5.3 The Borrower has full right, power and authority to enter into this
Agreement, to make the borrowings hereunder provided for, to issue the Note in
evidence thereof and to perform each and all of the matters and things herein
and therein provided for and this Agreement does not, and the Note when issued
will not, nor will the performance or observance by the Borrower of any of the
matters or things herein or therein provided, contravene any provision of law or
the Trust or any other covenant or agreement affecting the Trust or any of its
assets. As of the date of the disbursement of the Loan, the Pledged Shares will
be fully paid and non-assessable and the Pledged Shares will be owned by the
Borrower free and clear of all liens, charges and encumbrances whatsoever,
except for any lien of Lender provided for herein.
5.4 Except as disclosed to the Lender in writing, there is no
litigation or governmental proceeding pending, nor to the knowledge of the
Borrower threatened, against the ESOP and Trust.
5.5 The ESOP and Trust have no material liabilities, whether absolute
or contingent, except for those heretofore disclosed to the Lender.
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SECTION SIX. REPRESENTATIONS AND WARRANTIES OF THE LENDER
The Lender represents and warrants that:
6.1 The Lender is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has full power and
authority and legal right to make and perform this Agreement.
6.2 The execution, delivery and performance by the Lender of this
Agreement have been duly authorized by all necessary action by the Lender and is
not and will not violate any provisions of law applicable to the Lender, any
rules, regulations or orders applicable to the Lender or any judgments or
decrees binding upon the Lender. This Agreement is a valid and legally binding
obligation of the Lender enforceable against the Lender in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, motorium and similar laws affecting credits' rights generally
and the general principles of equity (regardless of whether considered in a
proceeding at law or in equity).
6.3 No authorizations, approvals or consents of, and no filings or
registrations with, any governmental regulatory authority or agency are required
for the execution, delivery performance by the Lender of this Agreement, or any
transaction contemplated hereby, or for the validity or enforceability against
the Lender hereof except as have already been received or accomplished.
6.4 The execution, delivery and performance of the Agreement and the
consummation of the transactions contemplated hereby will not violate, conflict
with or constitute a default under (i) any of the provisions of the Company's
Certificate of Incorporation or Bylaws, (ii) any provision of any agreement,
instrument, order, arbitration award, judgment or decree to which the Company is
a party or by which it is or its assets are bound, (iii) any statute, rule or
regulation of any federal, state or local government or agency applicable to the
Company, except in any such case (i), (ii) or (iii) above, for any such
conflicts, violations or defaults which either individually or in the aggregate
do not have a material adverse effect on the business properties of the Company
and its subsidiaries, taken as a whole.
6.5 The Company has taken such actions as are required by applicable
law to be taken by it to establish the ESOP and the Trust.
6.6 There is no action, suit, investigation or proceeding pending, or
to the best knowledge of the Company, threatened against or affecting the ESOP
or the Trust before any court or governmental department, agency or
instrumentality.
6.7 The Loan will be an "exempt loan" as that term is defined under
Regulation Section 54.4975-7(b)(1)(iii), provided the Borrower determines that
the interest rate is not more than reasonable; and the transactions contemplated
by this Agreement are not "prohibited transactions" within the meaning of
Section 4975 of Code Section 406(a) of ERISA.
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6.8 Except as otherwise provided in this Agreement, the Shares are not
subject to any restriction on transfer under applicable Federal securities law
and may be freely traded over-the-counter.
SECTION SEVEN. CONDITIONS PRECEDENT.
The obligation of the Lender to make the Loan shall be subject to
satisfaction of the following conditions precedent:
7.1 The Lender shall have received executed originals of this Agreement
and the Note duly signed and properly completed.
7.2 The Lender shall have received either (i) the certificate
evidencing all the Pledged Shares together with duly executed blank stock power
therefore or (ii) if such Pledged Shares are not yet available, a duly executed
agreement to pledge such stock in the form attached hereto as Exhibit B (in
which event such certificate and stock power will be delivered within 10 days of
the date of the Lender makes the Loan).
7.3 The Lender shall have received copies (executed or certified, as
may be appropriate) of all legal documents or proceedings taken in connection
with the execution and delivery of this Agreement and the Note.
SECTION EIGHT. COVENANTS.
The Borrower covenants and agrees that so long as any amount remains
unpaid on the Note or the Commitment is outstanding, except to the extent
compliance in any case or cases is waived in writing by the Lender:
8.1 Compliance.
The Borrower will comply with all requirements of the Code, ERISA and
any other law, rule or regulation applicable to it as such laws, rules or
regulations affect the Plan or the Trust.
8.2 Reports.
(a) The Borrower will maintain a system of accounting for the Plan and
the Trust in accordance with sound accounting practice and will, from time to
time, furnish to the Lender and its duly authorized representatives, such
information and data with respect to the financial condition of the Plan and the
Trust as the Lender may reasonably request.
(b) Without any request the Borrower will furnish to the Lender
promptly after knowledge thereof shall have come to the attention of the
Borrower, written notice of the occurrence of any
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Default or Event of Default hereunder or of any threatened or pending litigation
or governmental proceeding against the Plan or the Trust.
8.3 Determination Letter. The Company shall apply for a determination
letter from the Internal Revenue Service that the Plan and the Trust, taken
together, qualify as an employee stock ownership plan for purposes of Section
4975(e)(7) of the Code and the rules and regulations thereunder.
SECTION NINE. EVENTS OF DEFAULT AND REMEDIES.
9.1 Any one or more of the following shall constitute an Event of
Default hereunder:
(a) The Borrower shall default in the payment of principal
interest in respect of the Note or any other amounts payable under this
Agreement when due;
(b) Any representation, warranty or statement made by the
Borrower herein or in connection with the making of the Loan proves to
be incorrect in any material respect as of the date of the issuance or
making thereof,
(c) The Borrower shall default in the due performance or
observance by it of any term, covenant or agreement (other than those
referred to in subparts (a) and (b), inclusive, of this Section 9.1)
contained in this Agreement and such default shall continue unremedied
for a period of 30 days after notice to the Borrower by the Lender or
any other holder of the Note;
9.2 When any Event of Default described in subsections (a) to (c), of
Section 9.1 has occurred and is continuing, the Lender or the holder of the Note
shall have no rights to assets of the Trust other than (i) contributions (other
than contributions of employer securities) that are made by the Lender to enable
the Borrower to meet its obligations pursuant to the Loan, cash dividends
received by the Borrower on the Shares and earnings attributable to the
investment of such contributions and dividends and (ii) the Pledged Stock;
provided further, however, that the value of Trust assets transferred to the
Lender as a result of an Event of Default shall not exceed the amount of the
repayment then in default, and, provided further, that so long as the Lender is
a "party in interest" within the meaning of ERISA Section 3(14) and a
"disqualified person" within the meaning of Section 4975(e)(2) of the Code, a
transfer of Trust assets upon default shall be made only if, and to the extent
of, the Borrower's failure to meet the loan's payment schedule.
9.3 When any Event of Default has occurred and is continuing the Lender
may, in addition to such other rights or remedies as it may have, then or at any
time or times thereafter exercise with respect to the Collateral any and all of
the rights, options and remedies of a secured party under the Uniform Commercial
Code of New York (the "UCC") including without limitation the sale of all or any
part of the Collateral at any brokers' board any public or private
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sale, provided, however that the Lender shall only be able to exercise such
rights and remedies to the extent of all interest and principal payments which
are due and payable as of the date of the Event of Default and provided further
that prior to such exercise the Lender shall release from the Collateral so much
thereof as it would have been required to release under Section 3.4 hereof if
the period from the previous December 31 to the date of such release constituted
a Plan Year and no Event of Default had occurred. The net proceeds of any such
sale, after deducting all costs and expenses incurred in the collection,
protection, sale and delivery of the Collateral (which expenses the Borrower
promises to pay) shall be applied first to the payment of any costs and expenses
incurred by the Lender in selling or otherwise disposing of the Collateral;
second, to the payment of the principal of and the interest on the Note; and,
third, ratably as among any other items of the indebtedness hereby secured. Any
surplus remaining after the full payment and satisfaction of the foregoing shall
be returned to the Borrower or to whomsoever a court of competent jurisdiction
shall determine to be entitled thereto. Any requirement of said UCC as to
reasonable notice shall be met by the Lender personally delivering mailing
notice (by certified mail - return receipt requested) to the Borrower at its
address as provided in Section 11.6 hereof at least ten (10) days prior to the
event giving rise to the requirement of such notice. In connection with any
offer, solicitation or sale of the Collateral, the Lender may restrict bidders
and otherwise proceed in whatever manner it reasonably believes appropriate in
order to comply or assure compliance with applicable legal requirements
pertaining to the offer and sale of securities of the same type as the
Collateral.
9.4 The number of shares of Pledged Stock as to which the Lender may
exercise the rights set forth in this Section 9 may not exceed that number of
shares (then remaining subject to pledge hereunder) which is then equal in
current value to the amount in default under the Note. The remedies set forth in
this Section 8 may only be exercised to the extent consistent with the
restrictions on remedies set forth in Section 408(b)(3) of ERISA and the
regulations thereunder and Section 4975(d)(3) of the Code and the regulations
thereunder.
SECTION TEN. DEFINITIONS.
10.1 The term "Business Day" shall mean any day on which the banks are
generally open for business in New York other than a Saturday or Sunday.
10.2 The term "Event of Default" shall mean any event or condition
specified as such in Section 9.1 hereof and the term "Default" shall mean any
event or condition which, with the lapse of time, the giving of notice, or both
would constitute an Event of Default.
Capitalized terms defined elsewhere in this Agreement shall have the
meanings as defined in all provisions hereof.
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SECTION ELEVEN. MISCELLANEOUS
11.1 Holidays. If any principal of the Note shall fall due on Saturday,
Sunday or on another day which is a legal holiday for banks in the State of New
York, interest at the rate the Note bears for the period prior to maturity shall
continue to accrue on such principal from the stated due date thereof to and
including the next succeeding Business Day on which the same is payable.
11.2 No Waiver, Cumulative Remedies. No delay failure on the part of
the Lender on the part of the holder of the Note in the exercise of any power or
right shall preclude any other or further exercise thereof, or the exercise of
any other power or right, and the rights and remedies hereunder of the Lender
and of any holder of the Note are cumulative to, and not exclusive of, any
rights or remedies which any of them would otherwise have.
11.3 Amendments, Etc. No amendment, modification, termination or waiver
of any provision of this Agreement or of the Note nor consent to any departure
by the Borrower therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Lender, and then such consent, modification or
waiver shall be effective only in the specific instance and for the specific
purpose for which given. No notice to or demand on the Borrower in any case
shall entitle the Borrower to any other further notice or demand in similar or
other circumstances.
11.4. Survival of Representations. All representations and warranties
made herein in certificates given in connection with the Loan shall survive the
execution and delivery of this Agreement and of the Note, and shall continue in
full force and effect with respect to the date as of which they were made as
long as any credit is in use or available hereunder.
11.5 Payments. So long as the Lender is the holder of the Note, the
Borrower will promptly and punctually pay the principal of and interest on the
Note without presentment of the Note and without any notation of any such
payment being made on the Note.
11.6 Addresses for Notices. All communications provided for herein
shall be in writing and shall be deemed to have been given or made when served
personally when deposited in the United States mail addressed if to the Borrower
to Xxxxx Xxxxxx, Pryor, Cashman, Xxxxxxx & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000; if to the Lender at Xxx Xxxxxxx Xxxxxxx Xxxxx, Xxxx Xxxxxxx,
Xxx Xxxx 00000-0000, Attention: Xxxxx X. Xxxxxx, at such other address as shall
be designated by any party hereto in a written notice to each other party
pursuant to this Section 11.6.
11.7 Headings. Article and Section headings used in this Agreement are
for convenience or reference only and are not a part of this Agreement for any
other purpose.
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11.8 Severability of Provisions. Any provision of this Agreement which
is unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such unenforceability without impairing the
enforceability of the remaining provisions hereof affecting the enforceability
of such provision in any other jurisdiction.
11.9 Counterparts. This Agreement may be executed in any number of
counterparts, and by different parties hereto on separate counterparts, and all
such counterparts taken together shall be deemed to constitute one and the same
instrument.
11.10 Binding Nature, Governing Law, Etc. This Agreement shall be
binding upon the Borrower and its success and assigns and shall inure to the
benefit of the Lender and the benefit of its successes and assigns, including
any subsequent holder of the Note. To the extent not preempted by Federal law,
this Agreement and the rights and duties of the parties hereto shall be
construed and determined in accordance with the laws of the State of New York
without regard to principles of conflicts of laws. This Agreement constitutes
the entire understanding of the parties with respect to the subject matter
hereof and any prior agreements, whether written or oral, with respect thereto
are superseded hereby.
11.11 Concerning the Borrower. The term "Borrower" as used herein shall
mean and include the undersigned as trustee of the Trust and their successes in
trust not individually but solely as Trustee under that certain Astoria Federal
Savings and Loan Association Employee Stock Ownership Trust effective November
18, 1993, by and between the undersigned and Astoria Federal Savings and Loan
Association and this Agreement shall be binding upon the undersigned and its
successes and assigns and upon the trust estate. The undersigned assumes no
personal or individual liability or responsibility for payment of the
indebtedness evidenced by the Note or for observance or performance of the
covenants and agreements herein contained or for the truthfulness of the
representations and warranties herein contained, the undersigned having executed
this Agreement and the Note solely in its capacity as trustee as aforesaid to
bind the undersigned, its successes in trust and the trust estates.
11.12 Limited Liability. Anything contained herein or in the Note to
the contrary notwithstanding, the sole and only recourse of the Lender and any
other holder of the Note for payment of the obligations hereunder and under the
Note , as against the Borrower for the payment of the obligations hereunder and
under the Note shall be to (i) the Collateral, (ii) contributions, other than
employer securities not constituting Collateral hereunder, made to the Plan and
the Trust by sponsoring employers to enable the Borrower to meet its obligations
hereunder and under the Note, and (iii) earnings attributable to the Pledged
Shares and to the investment of such employer contributions, but only to the
extent of the failure of the Borrower to meet the payment schedule of the Loan
provided for herein.
11.13 Lender's Duty of Care. It is agreed and understood that the
Lender's duty with respect to the Collateral shall be solely to use reasonable
care in the custody and preservation of the Collateral in the Lender's
possession, which shall not include any steps necessary to preserve
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rights against prior parties.
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All provisions in this Agreement shall be construed so as to maintain
(i) the ESOP as a qualified leveraged employee stock ownership plan under
Sections 401 (a) and 4975(e)(7) of the Code, (ii) the Trust as exempt from
taxation under Section 501(a) of the Code, and (iii) the Loan as an "exempt
loan" under the Exempt Loan Rules.
Upon your acceptance hereof in the manner hereinafter set forth, this
Agreement shall constitute a contract between us for the uses and purposes
hereinabove set forth.
Dated as of this 18 day of November 1993.
Nationar, and its successes in trust, as trustee under that certain
Astoria Federal Savings and Loan Association Employee Stock Ownership
Trust effective Nov 18, 1993 by and between the undersigned and Astoria
Federal Savings and Loan Association.
By__________________
Accepted and agreed to at Lake Success, New York as of the date last
above written Astoria Financial Corporation
By /S/ Xxxxxx X. Xxxxxxx, Xx.
Xxxxxx X. Xxxxxxx, Xx.
President, Chief Executive Officer
and Director
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All provisions in this Agreement shall be construed so as to maintain
(i) the ESOP as a qualified leveraged employee stock ownership plan under
Sections 401 (a) and 4975(e)(7) of the Code, (ii) the Trust as exempt from
taxation under Section 501(a) of the Code, and (iii) the Loan as an "exempt
loan" under the Exempt Loan Rules.
Upon your acceptance hereof in the manner hereinafter set forth, this
Agreement shall constitute a contract between us for the uses and purposes
hereinabove set forth.
Dated as of this 18 day of November 1993.
Nationar, and its successes in trust, as trustee under that certain
Astoria Federal Savings and Loan Association Employee Stock Ownership
Trust effective Nov 18, 1993 by and between the undersigned and Astoria
Federal Savings and Loan Association.
By /S/ Xxxx X. XxXxxx By: /S/ Xxxx X. Xxxxxxxx
Xxxx X. XxXxxx Xxxx X. Xxxxxxxx
Senior Vice President Vice President
Accepted and agreed to at Lake Success, New York as of the date last
above written Astoria Financial Corporation
By_____________________
Xxxxxx X. Xxxxxxx, Xx.
President, Chief Executive Officer
and Director
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EXHIBIT A
PROMISSORY NOTE
$33,029,425
Lake Success, New York
November 18, 1993
For VALUE RECEIVED, the undersigned, Nationar, not individually but
solely as trustee under that certain Astoria Federal Savings and Loan
Association Employee Stock Ownership Trust effective November 18, 1993 by and
between the undersigned and Astoria Federal Savings and Loan Association (the
"Borrower") promises to pay to the order of Astoria Financial Corporation, a
Delaware Corporation (the "Lender") at its office at Xxx Xxxxxxx Xxxxxxx Xxxxx,
Xxxx Xxxxxxx, Xxx Xxxx 00000-0000, the principal sum of thirty-three million,
twenty-nine thousand, four hundred and twenty-five dollars ($33,029,425), if
less, the aggregate principal amount of the Loan made to the Borrower under
Section 1.1 of the Loan and Security Agreement hereinafter referred to in
consecutive annual principal installments each in an amount equal to 1/12th of
the original principal amount of such Loan, together with all accrued interest
on the unpaid principal sum, payable commencing on December 31, 1994, and on the
last day of each December in each year thereafter, except that the final
installment in the amount of all principal and interest not sooner paid shall be
due on December 31, 2005, the final maturity hereof.
The Borrower promises to pay interest (computed on the basis of a year
of 360 days for the actual number of days elapsed) at said office on the balance
of principal from time to time remaining outstanding and unpaid hereon at the
rate per annum equal at all times to 6.0% annually on the last day of each
December, commencing December 31, 1994, and in each year thereafter and on the
final maturity date of this Note. On demand, the Borrower promises to pay
interest on any overdue principal hereof (whether by lapse of time, acceleration
otherwise) until paid at the stated rate.
This Note is issued under the terms and provisions of that certain
Astoria Federal Savings and Loan Association Employee Stock Ownership Trust Loan
and Security Agreement bearing even date herewith by and between the Borrower
and the Lender (the "Loan and Security Agreement") and this Note and the holder
hereof are entitled to all the benefits and security provided for thereby
referred to therein to which Loan and Security Agreement reference is hereby
made for a statement thereof.
This Note may be declared due prior to its express maturity and
voluntary prepayments may be made hereon, all in the events, on the terms and in
the manner as provided in such Loan and Security Agreement.
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Recourse for the payment of this Note has been limited by the
provisions of the Loan and Security Agreement and this Note is expressly made
subject to such provisions. This Note shall be governed by and construed in
accordance with the laws of New York without regard to principles of conflicts
of laws. The Borrower hereby waives presentment for payment and demand.
Upon the occurrence of an Event of Default as such term is defined in
the Loan and Security Agreement at the option of the Lender, all amounts payable
by the Borrower to the Lender under the terms of this Note may immediately
become due and payable by the Borrower to the Lender pursuant to the provisions
of Section 9.2 of the Loan and Security Agreement, and the Lender shall have all
of the rights, powers, and remedies available under the terms of this Note, any
of the other documents evidencing and securing this Loan and all applicable
laws. The Borrower and all endorsers, guarantors, and other parties who may now
in the future be primarily secondarily liable for the payment of the
indebtedness evidenced by this Note hereby severally waive presentment, protest
and demand, notice of protest, notice of demand and of dishonor and non-payment
of this Note and expressly agree that this Note any payment hereunder may be
extended from time to time without in any way affecting the liability of the
Borrower, guarantors and endorsers.
Nationar, and its successes in trust, as trustee under that certain Astoria
Federal Savings and Loan Association Employee Stock Ownership Trust effective
November 18, 1993 by and between the undersigned and Astoria Federal Savings and
Loan Association.
By /S/ Xxxx X. XxXxxx
For Nationar, the Trustee for Astoria Federal
Savings and Loan Association Employee
Stock Ownership Trust
Xxxx X. XxXxxx
Senior Vice President
By: /S/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Vice President
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EXHIBIT B
SECURITY AGREEMENT
RE
INSTRUMENTS OR NEGOTIABLE DOCUMENTS TO BE DEPOSITED
For new value contemporaneously given by Astoria Financial Corporation,
the undersigned ("debt"), the receipt whereof is hereby acknowledged, the debt
does hereby grant a security interest to said Lender in the instruments or
negotiable documents hereafter described ("Collateral"), in all of which
Collateral the debt warrants that the debt has good, valid and effective rights
to the ownership and possession thereof and to the grant of the security
interest hereby made:
1,321,172 shares of the common stock, par value $.01 per share, of
Astoria Financial Corporation, a Delaware corporation.
Debt agrees to deliver said collateral to said Lender not later than the
close of business on Nov 26, 1993, said date being within 10 days from the date
hereof.
Said security interest secures the payment of all indebtedness and
liabilities, now existing or hereafter arising, and the Lender has all the
rights with respect to said Collateral and said security interest as more fully
set forth in the form of secured note or notes executed and delivered by the
undersigned to said Lender prior hereto or contemporaneously herewith.
[Remainder of this page intentionally left blank]
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This agreement, including matters of interpretation and construction, and
the rights of the Lender and the duties and obligations of the debt hereunder
are to be determined in accordance with the laws of the State of New York,
particularly the Uniform Commercial Code, except where preempted by federal law.
Dated at Lake Success, New York, November 18, 1993.
Nationar and its successes in trust, as trustee under that certain Astoria
Federal Savings and Loan Association Employee Stock Ownership Trust effective
November 18, 1993 by and between the undersigned and Astoria Federal Savings and
Loan Association
By /S/ Xxxx X. XxXxxx
For Nationar, the Trustee for Astoria Federal
Savings and Loan Association Employee Stock
Ownership Trust
Xxxx X. XxXxxx
Senior Vice President
By: /S/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Vice President
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PROMISSORY NOTE
$33,029,425
Lake Success, New York
November 18, 1993
For VALUE RECEIVED, the undersigned, Nationar, not individually but
solely as trustee under that certain Astoria Federal Savings and Loan
Association Employee Stock Ownership Trust effective November 18, 1993 by and
between the undersigned and Astoria Federal Savings and Loan Association (the
"Borrower") promises to pay to the order of Astoria Financial Corporation, a
Delaware Corporation (the "Lender") at its office at Xxx Xxxxxxx Xxxxxxx Xxxxx,
Xxxx Xxxxxxx, Xxx Xxxx 00000-0000, the principal sum of thirty-three million,
twenty-nine thousand, four hundred and twenty-five dollars ($33,029,425), if
less, the aggregate principal amount of the Loan made to the Borrower under
Section 1.1 of the Loan and Security Agreement hereinafter referred to in
consecutive annual principal installments each in an amount equal to 1/12th of
the original principal amount of such Loan, together with all accrued interest
on the unpaid principal sum, payable commencing on December 31, 1994, and on the
last day of each December in each year thereafter, except that the final
installment in the amount of all principal and interest not sooner paid shall be
due on December 31, 2005, the final maturity hereof.
The Borrower promises to pay interest (computed on the basis of a year
of 360 days for the actual number of days elapsed) at said office on the balance
of principal from time to time remaining outstanding and unpaid hereon at the
rate per annum equal at all times to 6.0% annually on the last day of each
December, commencing December 31, 1994, and in each year thereafter and on the
final maturity date of this Note. On demand, the Borrower promises to pay
interest on any overdue principal hereof (whether by lapse of time, acceleration
otherwise) until paid at the stated rate.
This Note is issued under the terms and provisions of that certain
Astoria Federal Savings and Loan Association Employee Stock Ownership Trust Loan
and Security Agreement bearing even date herewith by and between the Borrower
and the Lender (the "Loan and Security Agreement") and this Note and the holder
hereof are entitled to all the benefits and security provided for thereby
referred to therein to which Loan and Security Agreement reference is hereby
made for a statement thereof.
This Note may be declared due prior to its express maturity and
voluntary prepayments may be made hereon, all in the events, on the terms and in
the manner as provided in such Loan and Security Agreement.
Recourse for the payment of this Note has been limited by the
provisions of the Loan and Security Agreement and this Note is expressly made
subject to such provisions. This Note shall be governed by and construed in
accordance with the laws of New York without regard to
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principles of conflicts of laws. The Borrower hereby waives presentment for
payment and demand.
Upon the occurrence of an Event of Default as such term is defined in
the Loan and Security Agreement at the option of the Lender, all amounts payable
by the Borrower to the Lender under the terms of this Note may immediately
become due and payable by the Borrower to the Lender pursuant to the provisions
of Section 9.2 of the Loan and Security Agreement, and the Lender shall have all
of the rights, powers, and remedies available under the terms of this Note, any
of the other documents evidencing and securing this Loan and all applicable
laws. The Borrower and all endorsers, guarantors, and other parties who may now
in the future be primarily secondarily liable for the payment of the
indebtedness evidenced by this Note hereby severally waive presentment, protest
and demand, notice of protest, notice of demand and of dishonor and non-payment
of this Note and expressly agree that this Note any payment hereunder may be
extended from time to time without in any way affecting the liability of the
Borrower, guarantors and endorsers.
Nationar, and its successes in trust, as trustee under that certain Astoria
Federal Savings and Loan Association Employee Stock Ownership Trust effective
November 18, 1993 by and between the undersigned and Astoria Federal Savings and
Loan Association.
By /S/ Xxxx X. XxXxxx
For Nationar, theTrustee for Astoria Federal
Savings and Loan Association Employee
Stock Ownership Trust
Xxxx X. XxXxxx
Senior Vice President
By: /S/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Vice President
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20
SECURITY AGREEMENT
RE
INSTRUMENTS OR NEGOTIABLE DOCUMENTS TO BE DEPOSITED
For new value contemporaneously given by Astoria Financial Corporation,
the undersigned ("debt"), the receipt whereof is hereby acknowledged, the debt
does hereby grant a security interest to said Lender in the instruments or
negotiable documents hereafter described ("Collateral"), in all of which
Collateral the debt warrants that the debt has good, valid and effective rights
to the ownership and possession thereof and to the grant of the security
interest hereby made:
1,321,172 shares of the common stock, par value $.0l per share, of
Astoria Financial Corporation, a Delaware corporation.
Debt agrees to deliver said collateral to said Lender not later than the
close of business on Nov 26, 1993, said date being within 10 days from the date
hereof.
Said security interest secures the payment of all indebtedness and
liabilities, now existing or hereafter arising, and the Lender has all the
rights with respect to said Collateral and said security interest as more fully
set forth in the form of secured note or notes executed and delivered by the
undersigned to said Lender prior hereto or contemporaneously herewith.
[Remainder of this page intentionally left blank]
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21
This agreement, including matters of interpretation and construction, and
the rights of the Lender and the duties and obligations of the debt hereunder
are to be determined in accordance with the laws of the State of New York,
particularly the Uniform Commercial Code, except where preempted by federal law.
Dated at Lake Success, New York, November 18, 1993.
Nationar and its successes in trust, as trustee under that certain Astoria
Federal Savings and Loan Association Employee Stock Ownership Trust effective
November 18, 1993 by and between the undersigned and Astoria Federal Savings and
Loan Association
By /S/ Xxxx X. XxXxxx
For Nationar, the Trustee for Astoria Federal
Savings and Loan Association Employee Stock
Ownership Trust
Xxxx X. XxXxxx
Senior Vice President
By: /S/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Vice President
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