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Exhibit 4.7
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EXCHANGE GUARANTEE AGREEMENT
Between
NORTH FORK BANCORPORATION, INC.
as (Guarantor)
and
BANKERS TRUST COMPANY
(as Trustee)
Dated as of
____________ ___, 1997
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CROSS REFERENCE TABLE *
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
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310(a) .............................................. 4.01(a)
310(b) .............................................. 4.01(c), 2.08
310(c) .............................................. Inapplicable
311(a) .............................................. 2.02(b)
311(b) .............................................. 2.02(b)
311(c) .............................................. Inapplicable
312(a) .............................................. 2.02(a)
312(b) .............................................. 2.02(b)
313. .............................................. 2.03
314(a) .............................................. 2.04
314(b) .............................................. Inapplicable
314(c) .............................................. 2.05
314(d) .............................................. Inapplicable
314(e) .............................................. 1.01, 2.05
.............................................. 3.02
314(f) .............................................. 2.01, 3.02
315(a) .............................................. 3.01(d)
315(b) .............................................. 2.07
315(c) .............................................. 3.01
315(d) .............................................. 3.01(d)
316(a) .............................................. 1.01, 2.06,
.............................................. 5.04
316(b) .............................................. 5.03
316(c) .............................................. Inapplicable
317(a) .............................................. Inapplicable
317(b) .............................................. Inapplicable
318(a) .............................................. 2.01(b)
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* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of any of its terms
or provisions.
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.1. Definitions................................................ 2
ARTICLE II
Trust Indenture Act
SECTION 2.1. Trust Indenture Act; Application........................... 5
SECTION 2.2. List of Holders............................................ 5
SECTION 2.3. Reports by the Guarantee Trustee........................... 6
SECTION 2.4. Periodic Reports to the Guarantee
Trustee........................................... 6
SECTION 2.5. Evidence of Compliance with Conditions
Precedent......................................... 6
SECTION 2.6. Events of Default; Waiver.................................. 6
SECTION 2.7. Event of Default; Notice................................... 6
SECTION 2.8. Conflicting Interests...................................... 7
ARTICLE III
Powers, Duties and Rights of the Guarantee Trustee
SECTION 3.1. Powers and Duties of the Guarantee Trustee................. 7
SECTION 3.2. Certain Rights of Guarantee Trustee........................ 9
SECTION 3.3. Indemnity.................................................. 11
SECTION 3.4. Expenses................................................... 11
ARTICLE IV
Guarantee Trustee
SECTION 4.1. Guarantee Trustee; Eligibility............................. 11
SECTION 4.2. Appointment, Removal and Resignation of the
Guarantee Trustee................................. 12
ARTICLE V
Guarantee
SECTION 5.1. Guarantee.................................................. 13
SECTION 5.2. Waiver of Notice and Demand................................ 13
SECTION 5.3. Obligations Not Affected................................... 13
SECTION 5.4. Rights of Holders.......................................... 14
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SECTION 5.5. Guarantee of Payment....................................... 14
SECTION 5.6. Subrogation................................................ 15
SECTION 5.7. Independent Obligations.................................... 15
ARTICLE VI
Covenants and Subordination
SECTION 6.1. Subordination.............................................. 15
SECTION 6.2. Pari Passu Guarantees...................................... 15
ARTICLE VII
Termination
SECTION 7.1. Termination................................................ 16
ARTICLE VIII
Miscellaneous
SECTION 8.1. Successors and Assigns..................................... 16
SECTION 8.2. Amendments................................................. 16
SECTION 8.3. Notices .................................................. 16
SECTION 8.4. Benefit .................................................. 18
SECTION 8.5. Interpretation............................................. 18
SECTION 8.6. Governing Law.............................................. 18
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EXCHANGE GUARANTEE AGREEMENT, dated as of
______ 1997 (the "Exchange Guarantee"), executed and
delivered by NORTH FORK BANCORPORATION, INC., a bank
holding company (the "Guarantor") having its
principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, and BANKERS TRUST COMPANY, a New York
banking corporation, as trustee (the "Guarantee
Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Trust Securities (as
defined herein) of NORTH FORK CAPITAL TRUST I, a
Delaware statutory business trust (the "Issuer").
WHEREAS pursuant to an Amended and Restated Declaration of
Trust (the "Declaration of Trust"), dated as of December 31, 1996, among the
trustees of the Issuer, the Guarantor, as sponsor, and the holders from time to
time of undivided beneficial interests in the assets of the Issuer, the Issuer
is issuing on the date hereof capital securities, having an aggregate
liquidation among of $ , such capital securities being designated the 8.70%
Exchange Capital Securities (the "Exchange Capital Securities") in connection
with the consummation of the Exchange Offer (as defined in the Registration
Agreement dated as of December 31, 1996 by and among the Guarantor, the Issuer
and the initial purchasers named therein).
WHEREAS, as incentive for the Holders to exchange the initial
Capital Securities (as defined in the Declaration of Trust) issued on the date
of the Declaration of Trust for the Exchange Capital Securities, the Guarantor
desires irrevocably and unconditionally to agree, to the extent set forth in
this Exchange Guarantee, to pay to the Holders of the Exchange Capital
Securities the Guarantee Payments (as defined below). The Guarantor agrees to
make certain other payments on the terms and conditions set forth herein.
WHEREAS, the Guarantor has executed and delivered a guarantee
agreement (the "Common Securities Guarantee") for the benefit of the holders of
the Common Securities (as defined in the Declaration of Trust), the terms of
which provide that if an Event of Default (as defined in the Declaration of
Trust) has occurred and is continuing, the rights of holders of the Common
Securities to receive Guarantee Payments under the Common Securities Guarantee
are subordinated, to the extent and in the manner set forth in
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the Common Securities Guarantee, to the rights of holders to receive Guarantee
Payments under this Exchange Guarantee.
NOW, THEREFORE, in consideration of the purchase by each
Holder, which purchase the Guarantor hereby agrees shall benefit the Guarantor,
the Guarantor executes and delivers this Exchange Guarantee for the benefit of
the Holders from time to time of the Trust Securities.
ARTICLE I
Definitions
SECTION 1.1. Definitions. As used in this Exchange Guarantee,
the terms set forth below shall, unless the context otherwise requires, have the
following meanings. Capitalized or otherwise defined terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Declaration of Trust as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person; provided, however, that an Affiliate
of the Guarantor shall not be deemed to include the Issuer. For the purposes of
this definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Capital Securities" shall have the meaning specified in the
first recital of this Exchange Guarantee.
"Debt" shall have the meaning specified in the Indenture.
"Declaration of Trust" shall have the meaning specified in the
first recital of this Exchange Guarantee.
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Exchange Guarantee; provided,
however, that, except with respect to a default in payment of any Guarantee
Payments, the Guarantor shall have received notice of default and shall not have
cured such default within 60 days after receipt of such notice; provided,
further, that no Event of Default shall occur unless an Event of Default (as
defined
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in the Indenture or the Declaration) shall have occurred and be continuing.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Trust Securities, to the
extent not paid or made by or on behalf of the Issuer: (i) any accrued and
unpaid Distributions required to be paid on the Trust Securities, to the extent
the Issuer shall have funds on hand available therefor at such time, (ii) the
redemption price, including all accrued and unpaid Distributions to the date of
redemption (the "Redemption Price"), with respect to the Trust Securities called
for redemption by the Issuer to the extent the Issuer shall have funds on hand
available therefor at such time, and (iii) upon a voluntary or involuntary
termination, winding-up or liquidation of the Issuer, unless Junior Subordinated
Debt Securities are distributed to the Holders, the lesser of (a) the aggregate
of the liquidation amount of $1,000 per Trust Security plus accrued and unpaid
Distributions to the date of payment to the extent the Issuer shall have funds
on hand available to make such payment at such time and (b) the amount of assets
of the Issuer remaining available for distribution to Holders in liquidation of
the Issuer (in either case, the "Liquidation Distribution"). If an Event of
Default under the Declaration has occurred and is continuing, no Guarantee
Payments with respect to the Common Securities or any guarantee payment under
any Other Guarantees (as defined in the Indenture) with respect to Common
Securities of any other North Fork Capital Trust (as defined in the Indenture),
if any, shall be made until the Holders of Capital Securities shall be paid in
full the Guarantee Payments to which they are entitled under this Exchange
Guarantee. Subordination of Guarantee Payments on the Common Securities
following such an Event of Default under the Declaration shall be analogous to
the subordination of the Common Securities provided for in Section 4.03 of the
Declaration.
"Guarantee Trustee" means Bankers Trust Company, until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Exchange Guarantee and thereafter means each such
Successor Guarantee Trustee.
"Guarantor" shall have the meaning specified in the first
recital of this Exchange Guarantee.
"Holder" means any holder, as registered on the books and
records of the Issuer, of any Trust Securities; provided, however, that in
determining whether the holders of the requisite percentage of Trust Securities
have given any request, notice, consent or waiver hereunder, "Holder"
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shall not include the Guarantor, the Guarantee Trustee, or any Affiliate of the
Guarantor or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as
of December 31, 1996, as supplemented and amended between the Guarantor and
Bankers Trust Company, as trustee, relating to the issuance of the Junior
Subordinated Debt Securities.
"Issuer" shall have the meaning specified in the first recital
of this Exchange Guarantee.
"List of Holders" has the meaning specified in Section
2.02(a).
"Majority in Liquidation Amount of the Securities" means,
except as provided by the Trust Indenture Act, a vote by the Holder(s), voting
separately as a class, of more than 50% of the aggregate Liquidation Amount of
all then Outstanding Trust Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman and Chief Executive Officer and President or
a Vice President, and by the Treasurer, an Associate Treasurer, an Assistant
Treasurer, the Controller, the Secretary or an Assistant Secretary of such
Person, and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Exchange Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each officer,
such condition or covenant has been complied with.
"Responsible Officer" when used with respect to the Guarantee
Trustee means any officer assigned to the Corporate Trust Office, including any
managing director,
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vice president, assistant vice president, assistant treasurer, assistant
secretary or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and having
direct responsibility for the administration of this Exchange Guarantee, and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"Senior Debt" shall have the meaning specified in the
Indenture.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under Section
4.01.
"Trust Securities" shall have the meaning specified in the
first recital of this Exchange Guarantee.
ARTICLE II
Trust Indenture Act
SECTION 2.1. Trust Indenture Act; Application. (a) This
Exchange Guarantee will not be qualified under the Trust Indenture Act except
upon the effectiveness of a registration statement with respect to this Exchange
Guarantee pursuant to a registration rights agreement as contemplated in Article
XII of the Indenture.
(b) Upon qualification under the Trust Indenture Act as
contemplated in clause (a) above, if and to the extent that any provision of
this Exchange Guarantee limits, qualifies or conflicts with the duties imposed
by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
SECTION 2.2. List of Holders. (a) The Guarantor shall furnish
or cause to be furnished to the Guarantee Trustee (i) semiannually, not more
than 15 days after May 15 and November 15 of each year, a list, in such form as
the Guarantee Trustee may reasonably require, of the names and addresses of the
Holders ("List of Holders") as of a date not more than 15 days prior to the
delivery thereof, and (ii) at such other times as the Guarantee Trustee may
request in writing, within 30 days after the receipt by the Guarantor of any
such request, a List of Holders as of a date not more than 15 days prior to the
time such list is furnished, in each case to the extent such information is in
the possession or control of the Guarantor and is not iden-
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tical to a previously supplied list of Holders or has not otherwise been
received by the Guarantee Trustee in its capacity as such. The Guarantee Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders.
(b) The Guarantee Trustee shall comply with its obligations
under Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture
Act.
SECTION 2.3. Reports by the Guarantee Trustee. Not later than
the last calendar day in February of each calendar year, commencing with the
last calendar day in February 1998, the Guarantee Trustee shall provide to the
Holders such reports, if any, as are required by Section 313 of the Trust
Indenture Act in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to the Guarantee Trustee. The
Guarantor shall provide to the Guarantee Trustee, the Securities and Exchange
Commission and the Holders such documents, reports and information, if any, as
required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with such conditions precedent, if any, provided for in this Exchange Guarantee
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by any officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.6. Events of Default; Waiver. The Holders of a
Majority in Liquidation Amount of the Securities may, by vote, on behalf of the
Holders, waive any past Event of Default and its consequences. Upon such waiver,
any such Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Exchange
Guarantee, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent therefrom.
SECTION 2.7. Event of Default; Notice. (a) The Guarantee
Trustee shall, within 90 days after the occurrence
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of an Event of Default, transmit by mail, first class postage prepaid, to the
Holders, notices of all Events of Default known to the Guarantee Trustee, unless
such Events of Default have been cured before the giving of such notice;
provided, that, except in the case of a default in the payment of a Guarantee
Payment, the Guarantee Trustee shall be protected in withholding such notice if
and so long as the Board of Directors, the executive committee or a trust
committee of directors and/or a Responsible Officer in good faith determines
that the withholding of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless a Responsible Officer charged with the
administration of the Declaration of Trust shall have received written notice of
such Event of Default.
SECTION 2.8. Conflicting Interests. The Declaration of Trust
shall be deemed to be specifically described in this Exchange Guarantee for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III
Powers, Duties and Rights of the
Guarantee Trustee
SECTION 3.1. Powers and Duties of the Guarantee Trustee. (a)
This Exchange Guarantee shall be held by the Guarantee Trustee for the benefit
of the Holders, and the Guarantee Trustee shall not transfer this Exchange
Guarantee to any Person except a Holder exercising his or her rights pursuant to
Section 5.04(iv) or to a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee of its appointment to act as Successor Guarantee
Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Exchange Guarantee for the benefit of the
Holders.
(c) The Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events
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of Default that may have occurred, shall undertake to perform only such duties
as are specifically set forth in this Exchange Guarantee, and no implied
covenants shall be read into this Exchange Guarantee against the Guarantee
Trustee. In case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.06), the Guarantee Trustee shall exercise such of
the rights and powers vested in it by this Exchange Guarantee, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Exchange Guarantee shall be construed
to relieve the Guarantee Trustee from liability for its own negligent action,
its own negligent failure to act or its own wilful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Exchange Guarantee, and the Guarantee Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Exchange
Guarantee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming
to the requirements of this Exchange Guarantee; but in the
case of any such certificates or opinions that by any
provision hereof or of the Trust Indenture Act are
specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Exchange Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was made;
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(iii) the Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee, or exercising any trust or power conferred
upon the Guarantee Trustee under this Exchange Guarantee; and
(iv) no provision of this Exchange Guarantee shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers if the Guarantee Trustee
shall have reasonable grounds for believing that the repayment of such
funds or liability is not assured to it under the terms of this
Exchange Guarantee or indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.
SECTION 3.2. Certain Rights of Guarantee Trustee. (a) Subject
to the provisions of Section 3.01:
(i) The Guarantee Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed, sent or presented
by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Exchange Guarantee shall be sufficiently evidenced by all Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Exchange Guarantee,
the Guarantee Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting to take any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate which, upon
receipt of such request from the Guarantee Trustee, shall be promptly
delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and
the advice or written opinion of such
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legal counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in accordance
with such advice or opinion. Such legal counsel may be legal counsel to
the Guarantor or any of its Affiliates and may be one of its employees.
The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Exchange Guarantee
from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Exchange
Guarantee at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee such security and
indemnity reasonably satisfactory to it, against the costs, expenses
(including attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction, including
such reasonable advances as may be requested by the Guarantee Trustee;
provided, that nothing contained in this Section 3.02(a)(v) shall be
taken to relieve the Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested
in it by this Exchange Guarantee.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, and the Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
(viii) Whenever in the administration of this Exchange Guarantee
the Guarantee Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (A) may request instructions
from the Holders, (B) may refrain from enforcing such remedy or right
or taking such other
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action until such instructions are received and (C) shall be fully
protected in acting in accordance with such instructions.
(b) No provision of this Exchange Guarantee shall be deemed to
impose any duty or obligation on the Guarantee Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on it
in any jurisdiction in which it shall be illegal, or in which the Guarantee
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
SECTION 3.3. Indemnity. The Guarantor agrees to indemnify the
Guarantee Trustee and its directors, officers, agents and employees for, and to
hold them harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Guarantee Trustee, arising out of or
in connection with the acceptance or administration of this Exchange Guarantee,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. The Guarantee Trustee will not claim or exact any lien or
charge on any Guarantee Payments as a result of any amount due to it under this
Exchange Guarantee. This indemnity shall survive the termination of this
Exchange Guarantee or the resignation or removal of the Guarantee Trustee.
SECTION 3.4. Expenses. The Guarantor, as obligor on the Junior
Subordinated Debt Securities, shall from time to time reimburse the Guarantee
Trustee for its reasonable expenses and costs incurred in connection with the
performance of its duties hereunder.
ARTICLE IV
Guarantee Trustee
SECTION 4.1. Guarantee Trustee; Eligibility. (a) There shall
at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of
at least $50,000,000, and shall
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be a corporation meeting the requirements of Section 310(c) of the
Trust Indenture Act. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the
supervising or examining authority, then, for the purposes of this
Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and Surplus as set forth in its most recent report
of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.10(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.02(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in all respects comply
with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of the
Guarantee Trustee. (a) Subject to Section 4.02(b), in the absence of the
existence of an Event of Default, the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Guarantee Trustee and delivered
to the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold
office until a Successor Guarantee Trustee shall have been appointed or until
its removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
executed by the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed by
such Successor Guarantee Trustee and delivered to the Guarantor and the
resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.02 within 60
days after delivery to the Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Succes-
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sor Guarantee Trustee. Such court may thereupon, after prescribing such notice,
if any, as it may deem proper, appoint a Successor Guarantee Trustee.
ARTICLE V
Guarantee
SECTION 5.1. Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by or on behalf of the Issuer),
as and when due, regardless of any defense, right of set-off or counterclaim
which the Issuer may have or assert. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Issuer to pay such amounts to the
Holders. The Guarantor shall give prompt written notice to the Guarantee Trustee
in the event it makes any direct payment hereunder.
SECTION 5.2. Waiver of Notice and Demand. The Guarantor hereby
waives notice of acceptance of the Exchange Guarantee and of any liability to
which it applies or may apply, presentment, demand for payment, any right to
require a proceeding first against the Guarantee Trustee, Issuer or any other
Person before proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
SECTION 5.3. Obligations Not Affected. The obligations,
covenants, agreements and duties of the Guarantor under this Exchange Guarantee
shall in no way be affected or impaired by reason of the happening from time to
time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the Trust
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions (other than any extension of time
for payment of Distributions that results from the extension of any
interest payment period on the Junior Subordinated Debt Securities as
so provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Trust
Securities or the extension of time for the performance of any other
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obligation under, arising out of, or in connection with, the Trust
Securities;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Trust Securities, or any action on the part of the Issuer
granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Trust
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.03 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain the consent of, the Guarantor with respect to the happening of any of
the foregoing.
SECTION 5.4. Rights of Holders. The Guarantor expressly
acknowledges that: (i) this Exchange Guarantee will be deposited with the
Guarantee Trustee to be held for the benefit of the Holders; (ii) the Guarantee
Trustee has the right to enforce this Exchange Guarantee on behalf of the
Holders; (iii) the Holders of a Majority in Liquidation Amount of the Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee in respect of this Exchange
Guarantee or exercising any trust or power conferred upon the Guarantee Trustee
under this Exchange Guarantee; and (iv) any Holder may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Exchange Guarantee, without first instituting a legal proceeding against the
Issuer or any other Person.
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SECTION 5.5. Guarantee of Payment. This Exchange Guarantee
creates a guarantee of payment and not of collection. This Exchange Guarantee
will not be discharged except by payment of the Guarantee Payments in full
(without duplication of amounts theretofore paid by the Issuer) or upon
distribution of Junior Subordinated Debt Securities to Holders as provided in
the Declaration of Trust.
SECTION 5.6. Subrogation. The Guarantor shall be subrogated to
all (if any) rights of the Holders against the Issuer in respect of any amounts
paid to the Holders by the Guarantor under this Exchange Guarantee and shall
have the right to waive payment by the Issuer pursuant to Section 5.01;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Exchange
Guarantee, if at the time of any such payment, any amounts are due and unpaid
under this Exchange Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7. Independent Obligations. The Guarantor
acknowledges that its obligations hereunder are independent of the obligations
of the Issuer with respect to the Trust Securities and that the Guarantor shall
be liable as principal and as debtor hereunder to make Guarantee Payments
pursuant to the terms of this Exchange Guarantee notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
5.03 hereof.
ARTICLE VI
Covenants and Subordination
SECTION 6.1. Subordination. This Exchange Guarantee will
constitute an unsecured obligation of the Guarantor and will rank subordinate
and junior in right of payment to all Senior Debt of the Guarantor, to the same
extent and in the same manner that the Junior Subordinated Debt Securities are
subordinated to Senior Debt pursuant to the Indenture, it being understood that
the terms of Article XIV of the Indenture shall apply to the obligations of the
Guarantor under this Exchange Guarantee as if (x) such Article XIV were set
forth herein in full and (y) such obligations were substituted for the term
"Securities" appearing in such Article XIV.
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SECTION 6.2. Pari Passu Guarantees. This Exchange Guarantee
shall rank pari passu with any similar guarantee agreements issued by the
Guarantor on behalf of the holders of trust securities issued by a trust created
by the Guarantor similar to North Fork Capital Trust I.
ARTICLE VII
Termination
SECTION 7.1. Termination. This Exchange Guarantee shall
terminate and be of no further force and effect upon (i) full payment of the
Redemption Price of all Trust Securities, (ii) the distribution of Junior
Subordinated Debt Securities to the Holders in exchange for all of the Trust
Securities or (iii) full payment of the amounts payable in accordance with the
Declaration of Trust upon liquidation of the Issuer. Notwithstanding the
foregoing, this Exchange Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must repay any sums
paid with respect to Trust Securities or this Exchange Guarantee.
ARTICLE VIII
Miscellaneous
SECTION 8.1. Successors and Assigns. All guarantees and
agreements contained in this Exchange Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders then outstanding. Except in connection with
a consolidation, merger or sale involving the Guarantor that is permitted under
Article VIII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Guarantor's obligations hereunder, the Guarantor shall
not assign its obligations hereunder.
SECTION 8.2. Amendments. Except with respect to any changes
which do not adversely affect the rights of the Holders in any material respect
(in which case no consent of the Holders will be required), this Exchange
Guarantee may only be amended with the prior approval of the Holders of not less
than a Majority in Liquidation Amount of the Securities. The provisions of
Article VI of the Declaration of Trust concerning meetings of the Holders shall
apply to the giving of such approval.
SECTION 8.3. Notices. Any notice, request or other
communication required or permitted to be given here-
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under shall be in writing, duly signed by the party giving such notice, and
delivered, telecopied (confirmed by delivery of the original) or mailed by first
class mail as follows:
(a) if given to the Guarantor, to the address set forth below
or such other address, facsimile number or to the attention of such
other Person as the Guarantor may give notice to the Holders:
NORTH FORK BANCORPORATION, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Secretary
(b) if given to the Issuer, in care of the Guarantee Trustee,
at the Issuer's (and the Guarantee Trustee's) address set forth below
or such other address as the Guarantee Trustee on behalf of the Issuer
may give notice to the Holders:
NORTH FORK CAPITAL TRUST I
c/o NORTH FORK BANCORPORATION, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Secretary
with a copy to:
Bankers Trust Company
Four Albany Street - 4th Floor
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust and Agency Group
Corporate Market Services
(c) if given to the Guarantee Trustee:
Bankers Trust Company
Four Albany Street - 4th Floor
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust and Agency Group
Corporate Market Services
(d) if given to any Holder, at the address set
forth on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt
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confirmed, or mailed by first class mail, postage prepaid, except that if a
notice or other document is refused delivery or cannot be delivered because of a
changed address of which no notice was given, such notice or other document
shall be deemed to have been delivered on the date of such refusal or inability
to deliver.
SECTION 8.4. Benefit. This Exchange Guarantee is solely for
the benefit of the Holders and is not separately transferable from the Trust
Securities.
SECTION 8.5. Interpretation. In this Exchange Guarantee,
unless the context otherwise requires:
(a) capitalized terms used in this Exchange Guarantee but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 1.01;
(b) a term defined anywhere in this Exchange Guarantee has the
same meaning throughout;
(c) all references to "the Exchange Guarantee" or "this
Exchange Guarantee" are to this Exchange Guarantee as modified,
supplemented or amended from time to time;
(d) all references in this Exchange Guarantee to Articles and
Sections are to Articles and Sections of this Exchange Guarantee unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Exchange Guarantee unless otherwise defined
in this Exchange Guarantee or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice
versa; and
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 8.6 Governing Law. THIS EXCHANGE GUARANTEE SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
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This instrument 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.
THIS EXCHANGE GUARANTEE is executed as of the day and year
first above written.
NORTH FORK BANCORPORATION,
INC.
by
--------------------------
Name:
Title:
BANKERS TRUST COMPANY, as
Guarantee Trustee,
by
--------------------------
Name:
Title:
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