EXHIBIT 4.2
5.75% Senior Notes due 2012, Series B
Astoria Financial Corporation
THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY ("DTC") OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE
OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CUSIP 000000XX0
5.75% Senior Notes due 2012, Series B
No. 1 $__________
Astoria Financial Corporation
promises to pay to CEDE & CO. or registered assigns, the principal sum of
_____________ DOLLARS ($____________), as such sum may be increased or reduced
as reflected on the records of the Trustee in accordance with Section 2.1(b) of
the within-mentioned Indenture, on October 15, 2012.
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
Astoria Financial Corporation
By:____________________________
Xxxxx X. Xxxxxx
Executive Vice President and
Chief Financial Officer
This is one of the Notes referred
to in the within-mentioned Indenture:
WILMINGTON TRUST COMPANY,
as Trustee
By:_________________________ Dated: __________, 2003
Name:
Title:
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5.75% Senior Notes due 2012, Series B
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Astoria Financial Corporation (the "Company"), a
Delaware corporation, promises to pay interest on the Principal Amount of this
Note at 5.75% per annum from October 16, 2002 until maturity. The Company shall
pay interest semi-annually on April 15 and October 15 of each year, or if any
such day is not a Business Day, on the next succeeding Business Day (each, an
"Interest Payment Date"). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of issuance; PROVIDED, that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; PROVIDED, FURTHER, that
the first Interest Payment Date shall be April 15, 2003. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the then applicable interest
rate, to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the
Notes to the Persons who are registered Holders of Notes at the close of
business on the April 1 or October 1 next preceding the Interest Payment Date,
even if such Notes are canceled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture (as
herein defined) with respect to defaulted interest. The Notes will be payable as
to principal, premium, if any, and interest at the office or agency of the
Paying Agent (which may be the Company), or, at the option of the Company,
payment of interest may be made by check mailed to the Holders at their
addresses set forth in the register of Holders, and provided that all payments
of principal, premium, if any, and interest with respect to Notes a Holder of
which owns at least $50 million aggregate Principal Amount of Notes and has
given wire transfer instructions to the Company at least ten Business Days prior
to the applicable payment date, will be required to be made by wire transfer of
immediately available funds to the accounts specified by the Holder thereof.
Such payment shall be in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts.
3. PAYING AGENT AND REGISTRAR. Initially, Wilmington Trust
Company, the Trustee ("Trustee") under the Indenture, will act as Paying Agent
and Registrar. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE. The Company issued this Note under an Indenture
dated as of October 16, 2002, as amended or supplemented from time to time
("Indenture"), between the Company and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the TIA. The Notes are subject to all such terms, and Holders are
referred to the Indenture and the TIA for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling.
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5. OPTIONAL REDEMPTION. The Notes will be subject to
redemption at any time at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice, at a price equal to the greater
of (i) 100% of the Principal Amount of Notes being redeemed, or (ii) the sum of
the present values of the Remaining Scheduled Payments of principal and interest
on the Notes being redeemed discounted to the date of redemption on a semiannual
basis, (assuming a 360-day year of twelve 30-day months) at a rate equal to the
Treasury Rate plus 45 basis points, plus in either case, accrued and unpaid
interest on the Principal Amount of Notes being redeemed to the Redemption Date.
6. NOTICE OF REDEMPTION. Notice of redemption will be mailed,
by first class mail, at least 30 days but not more than 60 days before the
Redemption Date to each Holder whose Notes are to be redeemed at its registered
address. Notes in denominations larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000, unless all of the Notes held by a Holder are
to be redeemed. On and after the Redemption Date, interest ceases to accrue on
Notes or portions thereof called for redemption, if the Company has deposited
with the Trustee or with the Paying Agent, one Business Day prior the Redemption
Date, money sufficient to pay the redemption price of and accrued interest on
all Notes to be redeemed on that date.
7. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples thereof. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company and the
Registrar need not exchange or register the transfer of any Note selected for
redemption, in whole or in part, except for the unredeemed portion of any Note
being redeemed in part. The Company need not exchange or register the transfer
of any Notes for a period of 15 days before a selection of Notes to be redeemed
or during the period between a record date and the next succeeding Interest
Payment Date.
8. PERSONS DEEMED OWNERS. The registered Holder of a Note may
be treated as its owner for all purposes.
9. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in Principal Amount of the then
outstanding Notes voting as a single class, and, subject to Sections 6.4, 6.6
and 6.7 of the Indenture, any existing Default or Event of Default (other than a
Default or Event of Default in the payment of the principal of, premium, if any,
on or interest on the Notes, except a payment default resulting from an
acceleration that has been rescinded). Subject to Sections 6.4, 6.6 and 6.7 of
the Indenture, compliance with any provision of the Indenture or the Notes may
be waived with the consent of the Holders of a majority in Principal Amount of
the then outstanding Notes voting as a single class. Without the consent of any
Holder of a Note, the Indenture or the Notes may be amended or supplemented to
cure any ambiguity, defect or inconsistency; to provide for uncertificated Notes
in addition to or in place of Definitive Notes or to alter the provisions of
Article II of the Indenture (including the related definitions) in a manner that
does not adversely affect any Holder; to provide for the assumption of the
Company's obligations to the Holders of the Notes by a successor to the Company
pursuant to Article V of the Indenture; to make any change that would provide
any additional rights or benefits to the Holders of the Notes; to make any
change that is not inconsistent with the Indenture and does not adversely affect
the legal
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rights under the Indenture of any Holder of Notes; or to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the TIA.
10. DEFAULTS AND REMEDIES. An "Event of Default" occurs if:
(i) the Company defaults in the payment of any installment of interest upon any
of the Notes as and when the same shall become due and payable, and such default
continues for a period of 30 days; (ii) the Company defaults in the payment of
all or any part of the principal of, or premium, if any, on, any of the Notes as
and when the same shall become due and payable either at maturity, upon any
redemption, by declaration of acceleration or otherwise; (iii) the Company fails
to perform any other covenant or agreement on the part of the Company contained
in the Notes or in the Indenture and such failure continues for a period of 60
days after the date on which notice specifying such failure, stating that such
notice is a "Notice of Default" under the Indenture and demanding that the
Company remedy the same, shall have been given to the Company by the Trustee, or
to the Company and the Trustee by the Holders of at least 25% in aggregate
Principal Amount of the Notes at the time outstanding; (iv) the Company defaults
in the scheduled payment of principal, premium, if any, or interest of or on any
Indebtedness in excess of $10,000,000 which constitutes an event of default as
defined in any instrument of the Company under which such Indebtedness is or may
be issued, or by which such Indebtedness is or may be secured or evidenced,
which event of default has resulted in the acceleration of such Indebtedness, or
any default occurring in payment of any such Indebtedness at final maturity (and
after the expiration of any applicable grace periods); (v) a court having
jurisdiction in the premises shall enter a decree or order for relief in respect
of the Company or the Material Subsidiary in an involuntary case or proceeding
under any applicable bankruptcy, insolvency, reorganization or other similar law
now or hereafter in effect, or a decree or order adjudging the Company or the
Material Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment, or composition of or
in respect of the Company or the Material Subsidiary under any applicable
federal or state law, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company or the Material
Subsidiary or for any substantial part of its property or ordering the winding
up or liquidation of its affairs, shall have been entered, and such decree or
order shall remain unstayed and in effect for a period of 90 consecutive days;
or (vi) the Company or the Material Subsidiary shall commence a voluntary case
or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect or any other case
or proceeding to be adjudicated a bankrupt or insolvent, or consent to the entry
of a decree or order for relief in an involuntary case or proceeding under any
such law, or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company or the Material Subsidiary, or the filing by the
Company or the Material Subsidiary of a petition or answer to consent seeking
reorganization or relief under any such applicable federal or state law, or the
consent by the Company or the Material Subsidiary to the filing of such petition
or to the appointment of or the taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or the Material Subsidiary or of any substantial part of its property,
or the making by the Company or the Material Subsidiary of an assignment for the
benefit of creditors, or the taking of action by the Company or the Material
Subsidiary in furtherance of any such action. If any Event of Default (other
than an Event of Default specified in clause (v) or (vi) hereof) occurs and is
continuing, the Trustee or the Holders of at least 25% in Principal Amount of
the then outstanding Notes may declare all the Notes to be due and payable
immediately. If an Event of Default specified in clause (v) or (vi) hereof
occurs, all outstanding Notes shall be due and payable without further action or
notice. Holders of the Notes may not enforce the Indenture or the Notes except
as provided in the Indenture. The Trustee may withhold from Holders of the Notes
notice of any continuing Default or Event of Default (except a Default or Event
of Default relating to the payment of
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principal, premium, if any, interest or Special Interest Premium, if any) if it
determines that withholding notice is in their interest. The Holders of a
majority in aggregate Principal Amount of the then outstanding Notes by written
notice to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture,
except a continuing Default or Event of Default in the payment of the principal
of, premium, if any, on or interest on the Notes.
11. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with the Company or any Affiliate of the Company with the
same rights it would have if it were not the Trustee.
12. NO RECOURSE AGAINST OTHERS. No director, officer,
employee, incorporator or stockholder of the Company, as such, shall have any
liability for any obligations of the Company under the Notes, the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the SEC that such a waiver is
against public policy.
13. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
14. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
15. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
16. AVAILABLE INFORMATION. The Company will furnish to any
Holder upon written request and without charge a copy of the Indenture. Requests
may be made to:
Astoria Financial Corporation
One Astoria Federal Plaza
Lake Success, New York 11042
Attention: General Counsel
17. COUNTERPARTS. This Note may be executed by one or more of
the parties to this Note on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
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Assignment Form
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
________________________________________________________________________________
(Insert assignee's Social Security or Tax Identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint __________________________ to transfer this Note on the
books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date:________________________
Your signature:___________________
(Sign exactly as your name
appears on the face of this Note)
Tax Identification No.:___________
SIGNATURE GUARANTEE:
__________________________________
Signatures must be guaranteed by
an "eligible guarantor
institution" meeting the
requirements of the Registrar,
which requirements include
membership or participation in the
Security Transfer Agent Medallion
Program ("STAMP") or such other
"signature guarantee program" as
may be determined by the Registrar
in addition to, or in substitution
for, STAMP, all in accordance with
the Securities Exchange Act of
1934, as amended.
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