EXHIBIT 99.5
FORM OF EXCHANGE AGENT AGREEMENT
______________, 2002
Wilmington Trust Company
Corporate Trust Administration
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Astoria Financial Corporation, a Delaware corporation (the "Company"),
proposes to make an offer (the "Exchange Offer") to exchange up to $200,000,000
aggregate principal amount of its outstanding 5.75% Senior Notes due 2012 (the
"Original Notes") for an equal principal amount of its 5.75% Senior Notes due
2012, Series B, which have been registered under the Securities Act of 1933, as
amended (the "Exchange Notes"). The terms and conditions of the Exchange Offer
as currently contemplated are set forth in a prospectus, dated ______________,
2002 (as the same may be amended or supplemented from time to time, the
"Prospectus"), to be distributed to the holders of the Original Notes. The
Original Notes and the Exchange Notes are collectively referred to herein as the
"Notes." Unless the context requires otherwise, references herein to the Notes,
the Original Notes, the Exchange Notes or any series of the Notes will mean the
beneficial interests in the book- entry interests held by The Depository Trust
Company ("DTC"). Capitalized terms used but not defined herein shall have the
same meaning given them in the Prospectus or the related letter of transmittal
in the form or forms to be delivered with the Prospectus to the holders of the
Original Notes (the "Letter of Transmittal").
A copy of the Prospectus is attached hereto as Exhibit A. A copy of
each of the form of Letter of Transmittal (including instructions), the form of
Notice of Guaranteed Delivery, the form of letter to brokers and the form of
letter to clients to be used in connection with the Exchange Offer are attached
hereto as Exhibit B.
The Company hereby appoints Wilmington Trust Company to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to Wilmington Trust Company.
The Exchange Offer is expected to be commenced by the Company on or
about ______________, 2002. The Letter of Transmittal accompanying the
Prospectus (or in the case of book-entry securities, either the Letter of
Transmittal or the Automated Tender Offer Program ("ATOP") system) is to be used
by the holders of the Original Notes to accept the Exchange Offer and contains
instructions with respect to the delivery of certificates for Original Notes
tendered in connection therewith.
Wilmington Trust Company
______________, 2002 Page 2.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
______________, 2002 or on such later date or time to which the Company may
extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the right
to extend the Exchange Offer from time to time by giving oral (confirmed in
writing) or written notice to you before 9:00 A.M., New York City time, on the
Business Day following the previously scheduled Expiration Date.
The Company expressly reserves the right, in its sole discretion, to
amend or terminate the Exchange Offer, and not to accept for exchange any
Original Notes not theretofore accepted for exchange, upon the occurrence of any
of the conditions of the Exchange Offer specified in the Prospectus under the
caption "The Exchange Offer -- Conditions to the Exchange Offer." The Company
will give you prompt oral (confirmed in writing) or written notice of any
amendment, termination or nonacceptance of Original Notes.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer" and in the Letter of Transmittal or as specifically set forth herein;
PROVIDED, HOWEVER, that in no way will your general duty to act in good faith be
discharged by the foregoing.
2. You will establish an account with respect to the Original Notes at
DTC (the "Book-Entry Transfer Facility") for purposes of the Exchange Offer
within two business days after the date of the Prospectus, and any financial
institution that is a participant in the Book-Entry Transfer Facility's systems
may, until the Expiration Date, make book-entry delivery of the Original Notes
by causing the Book-Entry Transfer Facility to transfer such Original Notes into
your account in accordance with the Book-Entry Transfer Facility's procedure for
such transfer. In every case, however, a Letter of Transmittal (or facsimile
thereof) or an agent's message, property completed and duly executed or
authenticated, with any required signature guarantees and any other required
documents must be transmitted to and received by you prior to the Expiration
Date or the guaranteed delivery procedures described in the Letter of
Transmittal must be complied with.
3. You are to examine each of the Letters of Transmittal and
certificates for Original Notes (and confirmations of book-entry transfer into
your account at the Book-Entry Transfer Facility) and any other documents
received by you from or for holders of the Original Notes to ascertain whether:
(i) the Letters of Transmittal and any such other documents are signed and
completed in accordance with instructions set forth therein and that such
book-entry confirmations are in proper form and contain the information required
to be set forth therein, (ii) the Original Notes have otherwise been properly
tendered, (iii) the Original Notes tendered in part are tendered in
denominations of $1,000 and integral multiples thereof and (iv) holders have
provided their Taxpayer Identification Number or required certification. The
determination of all questions as to validity, form, eligibility, acceptance and
withdrawal with respect to the exchange of any Original Notes shall be made by
the Company. In each case where the Letter of Transmittal or any other document
has not been completed or signed in accordance with the instructions set forth
in the Letter
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______________, 2002 Page 3.
of Transmittal, or where book-entry confirmations are not in proper form or omit
certain information, or where any of the certificates for Original Notes are not
in proper form for transfer or some other irregularity in connection with the
acceptance of the Exchange Offer exists, you will endeavor to inform the
presenters of the need for fulfillment of all requirements and to take any other
action as may be necessary or advisable to cause such irregularity to be
corrected.
4. With the approval of the President, any Executive Vice President or
the Treasurer of the Company (a "Designated Officer") or any person designated
by such a Designated Officer in writing (such approval, if given orally, to be
confirmed in writing), you are authorized to waive any irregularities in
connection with any tender of Original Notes pursuant to the Exchange Offer. You
are authorized to process withdrawals to the extent permitted by the Exchange
Offer.
5. At the written request of the Company or its counsel, you shall
notify tendering holders of Original Notes in the event of any extension,
termination or amendment of the Exchange Offer. In the event of any such
termination, you will return all tendered Original Notes to the persons entitled
thereto, at the request and expense of the Company.
6. Tenders of Original Notes may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer -- Procedures for Tendering Original Notes," and Original Notes
shall be considered properly tendered to you only when tendered in accordance
with the procedures set forth therein. Notwithstanding the provisions of this
paragraph 6, Original Notes that any Designated Officer or any other person
designated by any Designated Officer in writing shall approve as having been
properly tendered shall be considered to be properly tendered. Such approval, if
given orally, shall be confirmed in writing. Exchange Notes are to be issued in
exchange for Original Notes pursuant to the Exchange Offer only (i) against
deposit of the Original Notes with you prior to the Expiration Date or, in the
case of a tender in accordance with the guaranteed delivery procedures outlined
in Instruction 1 of the Letter of Transmittal, within three New York Stock
Exchange trading days after the Expiration Date of the Exchange Offer, together
with executed Letters of Transmittal and any other documents required by the
Exchange Offer or (ii) in the event that the holder is a participant in the
Book-Entry Transfer Facility's system, by the utilization of the Book-Entry
Transfer Facility's ATOP system and receipt of any evidence required by the
Exchange Offer.
7. You shall advise the Company with respect to any Original Notes
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Original Notes.
8. You shall accept tenders:
(a) in cases where the Original Notes are
registered in two or more names only if
signed by all named holders;
(b) in cases where the signing person (as
indicated on the Letter of Transmittal) is
acting in a fiduciary or a representative
capacity only when proper evidence of such
person's authority to so act is submitted;
and
Wilmington Trust Company
______________, 2002 Page 4.
(c) from persons other than the registered
holder of Original Notes only if customary
transfer requirements, including the payment
of any applicable transfer taxes, are
fulfilled.
You shall accept partial tenders of Original Notes when so indicated
and as permitted in the Letter of Transmittal and deliver certificates for
Original Notes to the registrar for split-up and return any untendered Original
Notes or Original Notes that have not been accepted by the Company to the holder
(or such other person as may be designated in the Letter of Transmittal) as
promptly as practicable after expiration or termination of the Exchange Offer.
9. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice, if given orally, to be
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Original Notes properly tendered and you, on behalf of the Company, will
exchange such Original Notes for Exchange Notes on the terms and subject to the
conditions set forth in the Prospectus and the Letter of Transmittal and cause
such Original Notes to be canceled. Delivery of Exchange Notes will be made on
behalf of the Company by you at the rate of $1,000 principal amount of Exchange
Notes for each $1,000 principal amount of the Original Notes tendered as
promptly as practicable after notice (such notice, if given orally, to be
confirmed in writing) of acceptance of said Original Notes by the Company;
PROVIDED, HOWEVER, that in all cases, Original Notes tendered pursuant to the
Exchange Offer will be exchanged only after timely receipt by you of
certificates for such Original Notes (or confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility), a properly completed and
duly executed Letter of Transmittal (or facsimile thereof) or agent's message,
with any required signature guarantees and any other required documents. Unless
otherwise instructed by the Company, you shall issue Exchange Notes only in
denominations of $1,000 or any integral multiple thereof.
10. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Original Notes tendered pursuant to the Exchange
Offer may be withdrawn at any time on or prior to the Expiration Date in
accordance with the terms of the Exchange Offer.
11. The Company shall not be required to exchange any Original Notes
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Original Notes
tendered shall be given orally (and confirmed in writing) by the Company to you.
12. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Original Notes tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer -- Conditions to the Exchange Offer" or
otherwise, you shall as soon as practicable after the expiration or termination
of the Exchange Offer return those certificates for unaccepted Original Notes
(or effect appropriate book-entry transfer), together with any related required
documents and the Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them (or effected such book-entry
transfer).
Wilmington Trust Company
______________, 2002 Page 5.
13. All certificates for reissued Original Notes, unaccepted Original
Notes or Exchange Notes shall be forwarded (a) by first-class certified mail,
return receipt requested, under a blanket surety bond protecting you and the
Company from loss or liability arising out of the non-receipt or non-delivery of
such certificates; (b) by registered mail insured separately by you, protecting
you and the Company from loss or liability arising out of the non-receipt or
non-delivery of such certificates or (c) by effectuating appropriate book-entry
transfer.
14. As soon as practicable after the Expiration Date, you shall arrange
for cancellation of the Original Notes submitted to you or returned by the
Book-Entry Transfer Facility in connection with the ATOP system. Such Original
Notes shall be delivered to the Trustee for cancellation in accordance with the
Indenture.
15. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
16. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth in the section of the
Prospectus captioned "The Exchange Offer," the Letter
of Transmittal or herein or as may be subsequently
agreed to in writing by you and the Company;
(b) will be regarded as making no representations and
having no responsibilities as to the validity,
sufficiency, value or genuineness of any of the
certificates for the Original Notes or Exchange Notes
represented thereby deposited with you or issued
pursuant to the Exchange Offer, and will not be
required to and will make no representation as to the
validity, value or genuineness of the Exchange Offer
or the Letter of Transmittal or any other disclosure
materials delivered in connection therewith;
(c) shall not be obligated to take any legal action
hereunder which might, in your reasonable judgment,
subject or expose you to any expense or liability
unless you shall have been furnished with indemnity
reasonably satisfactory to you;
(d) may reasonably rely on, and be protected in acting or
failing to act in reliance upon, any certificate,
instrument, opinion, notice, letter, telegram, telex,
facsimile transmission or other document or security
delivered to you and reasonably believed by you to be
genuine and to have been signed by the proper party
or parties;
(e) may reasonably act upon any tender, statement,
request, agreement or other instrument whatsoever not
only as to its due execution and validity and
effectiveness of its provisions, but also as to the
truth and accuracy of any
Wilmington Trust Company
______________, 2002 Page 6.
information contained therein, which you shall in
good faith believe to be genuine or to have been
signed or represented by a proper person or persons;
(f) may reasonably rely on, and shall be protected in
acting or failing to act upon, the written,
telephonic and oral instructions with respect to any
matter relating to you acting as Exchange Agent
covered by this Agreement (or supplementing or
qualifying any such actions) of any Designated
Officer of the Company;
(g) may consult with counsel satisfactory to you,
including counsel for the Company, with respect to
any questions relating to your duties and
responsibilities, and the advice or opinion of such
counsel shall be full and complete authorization and
protection in respect of any action taken, suffered
or omitted to be taken by you hereunder in good faith
and in accordance with the advice or opinion of such
counsel, PROVIDED, that you shall promptly notify the
Company of any action taken or omitted by you in
reliance upon such advice or opinion; and
(h) shall not advise any person tendering Original Notes
pursuant to the Exchange Offer as to the wisdom of
making such tender or as to the market value or
decline or appreciation in market value of any
Original Notes that may or may not occur as a result
of the Exchange Offer or as to the market value of
the Exchange Notes.
17. You shall take such action as may from time to time be requested by
the Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery or such other forms as may be approved and
provided to you from time to time by the Company, to all persons requesting such
documents and to accept and comply with telephone requests for information
relating to the Exchange Offer; PROVIDED, that such information shall relate
only to the procedures for accepting (or withdrawing from) the Exchange Offer.
The Company will furnish you with copies of such documents at your request. All
other requests for information relating to the Exchange Offer shall be directed
to the Company, Attention: Treasurer.
18. You shall advise by facsimile transmission or telephone (promptly
confirmed in writing to the Treasurer of the Company), and such other person or
persons as the Company may reasonably request, daily (and more frequently during
the week immediately preceding the Expiration Date and if otherwise reasonably
requested by the Company) up to and including the Expiration Date, as to the
number and principal amount of Original Notes which have been tendered pursuant
to the Exchange Offer and the items received by you pursuant to the Exchange
Offer and this Agreement, separately reporting and giving cumulative totals as
to items properly received and items improperly received. In addition, you will
also inform, and cooperate in making available to, the Company or any such other
person or persons, upon oral request (promptly confirmed in writing) made from
time to time on or prior to the Expiration Date, such other information as it or
such person reasonably requests. Such cooperation shall include, without
limitation, the granting by you
Wilmington Trust Company
______________, 2002 Page 7.
to the Company, and such person as the Company may request, of access to those
persons on your staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the Expiration Date the Company shall have
received information in sufficient detail to enable it to decide whether to
extend the Exchange Offer, including the identity of the holders of Original
Notes who have not tendered such Original Notes as of the date such request was
made. You shall prepare a final list of all persons whose tenders were accepted,
the number and aggregate principal amount of Original Notes tendered, the number
and aggregate principal amount of Original Notes accepted and the identity of
any Participating Broker-Dealers and the number and aggregate principal amount
of Exchange Notes delivered to each, and deliver said list to the Company
promptly after the Expiration Date.
19. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery received by you shall be stamped by you as to the date and
the time of receipt thereof and shall be preserved by you for a period of time
at least equal to the period of time you preserve other records pertaining to
the transfer of securities, or one year, whichever is longer, and thereafter
shall be disposed of by you in accordance with your standard procedures unless
otherwise instructed in writing by the Company. You shall dispose of unused
Letters of Transmittal and other surplus materials by returning them to the
Company at the Company's written request.
20. For services rendered as Exchange Agent hereunder, you shall be
entitled to the compensation set forth on Schedule I attached hereto, plus
reasonable out-of-pocket expenses and reasonable attorneys' fees and expenses,
incurred in connection with your services hereunder, within thirty days
following receipt by the Company of an itemized statement of such expenses and
fees in reasonable detail.
21. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
Letter of Transmittal (as they may be amended from time to time), on the other
hand, shall be resolved in favor of the latter two documents, except with
respect to the rights, duties, liabilities and indemnification of you as
Exchange Agent, which shall be controlled by this Agreement.
22. (a) The Company covenants and agrees to indemnify and hold you
(which for purposes of this paragraph shall include your directors, officers and
employees) harmless in your capacity as Exchange Agent hereunder from and
against any and all loss, liability, cost, damage, expense or claim, including
but not limited to reasonable attorneys' fees and expenses, incurred by you as a
result of, arising out of or in connection with the performance by you of your
duties under this Agreement or the compliance by you with the instructions set
forth herein or delivered hereunder; PROVIDED, HOWEVER, that the Company shall
not be liable for indemnification or otherwise, or hold you harmless, for any
loss, liability, cost, damage, expense or claim to the extent arising out of
your bad faith, gross negligence or willful misconduct. You shall promptly
notify the Company with respect to any claim against you, but in no case shall
the Company be relieved of its obligations under this indemnity with respect to
any claim against you by reason of your failure to provide such notice except to
the extent the Company is prejudiced by such failure. The Company shall be
entitled to participate at its own expense in the defense of any such claim or
other action, and, if the
Wilmington Trust Company
______________, 2002 Page 8.
Company so elects, the Company may, and upon your request the Company shall,
assume the defense of any suit brought to enforce any such claim. In the event
that the Company shall assume the defense of any such suit or threatened action
in respect of which indemnification may be sought hereunder, the Company shall
not be liable for the fees and expenses of any additional counsel thereafter
retained by you so long as you shall not have determined, in your reasonable
judgment, that a conflict of interest exists between you and the Company. The
Company shall not be liable under this paragraph for the fees and expenses of
more than one legal counsel for you.
(b) You agree that, without the prior written consent of the Company
(which consent shall not unreasonably be withheld), you will not settle,
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 could be sought in accordance with the indemnification
provisions of this Agreement (whether or not you or the Company or any of its
directors or controlling persons is an actual or potential party to such claim,
action or proceeding), unless such settlement, compromise or consent includes an
unconditional release of the Company and its directors and controlling persons
from all liability arising out of such claim, action, suit or proceeding.
23. You shall notify the Company of the amount of any transfer taxes
that you have actual knowledge are payable in respect of the exchange of
Original Notes.
24. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles.
25. This Agreement shall be binding upon and inure solely to the
benefit of each of the parties hereto, and its successors and assigns, and no
other person shall have any rights hereunder. Without limitation of the
foregoing, the parties hereto expressly agree that no holder of Original Notes
or Exchange Notes shall have any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
26. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
27. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
28. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged.
Wilmington Trust Company
______________, 2002 Page 9.
29. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or facsimile number set forth below:
If to the Company: Astoria Financial Corporation
Xxx Xxxxxxx Xxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Treasurer
If to the Exchange Agent: Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Administration -
Astoria Financial Corporation Exchange Offer
30. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, paragraphs 19, 20, 22 and 23 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Company any certificates for Notes, funds or property then held by you as
Exchange Agent under this Agreement.
31. This Agreement shall be binding and effective as of the date
hereof.
Wilmington Trust Company
______________, 2002 Page 10.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
ASTORIA FINANCIAL CORPORATION
By:_______________________________
Xxxxx X. Xxxxxx
Executive Vice President and
Chief Financial Officer
Accepted as of the date
first above written:
WILMINGTON TRUST COMPANY,
as Exchange Agent
By:_________________________________
Name:
Title:
SCHEDULE I
FEES
WILMINGTON TRUST COMPANY
CORPORATE TRUST DEPARTMENT
SCHEDULE OF FEES
FOR
ASTORIA FINANCIAL CORPORATION
5.75% SENIOR NOTES DUE 2012, SERIES B
[TO BE PROVIDED BY THE EXCHANGE AGENT]
