1
Loan Agreement
among
Long Island Bancorp, Inc.,
The Long Island Savings Bank, FSB
and
United States Trust Company Of New York,
solely as trustee Of
The LISB Employee Stock Ownership Plan
WHEREAS, in connection with the conversion of The Long Island
Savings Bank, FSB (the "Bank") from a federal mutual savings bank to a federal
stock savings bank in accordance with the Plan of Conversion for the Bank dated
November 16, 1993, as amended as of February 7, 1994 (the "Conversion"), the
Bank has established The LISB Employee Stock ownership Plan for the benefit of
all employees eligible to participate therein (such plan, as amended from time
to time, hereinafter referred to as the "ESOP");
WHEREAS, the ESOP is intended to constitute a qualified plan
under section 401(a) of the Internal Revenue Code of 1986, as amended (the
"Code"), and an "employee stock ownership plan" within the meaning of section
4975(e)(7) of the Code;
WHEREAS, the agreement of trust, dated as of March 31, 1994 (as
amended from time to time, hereinafter referred to as the "Trust Agreement"),
between the Bank and United States Trust Company of New York, as trustee
(together with its successors in such capacity, the "Trustee"), provides that
the assets of the trust created thereunder (the "Trust") shall be primarily
invested in shares of the outstanding common stock, par value $0.01 per share of
Long Island Bancorp, Inc. (the "Common Stock");
WHEREAS, the Bank has determined it to be in the best interests
of the participants in the ESOP and their beneficiaries to borrow funds from
Long Island Bancorp, Inc. pursuant to this Agreement and to purchase shares of
Common Stock with the proceeds of such borrowing, and the Trustee has further
determined that the execution, delivery and performance of this Agreement and
such purchase of shares of Common Stock are not inconsistent with its fiduciary
responsibilities under the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"); and
WHEREAS, Long Island Bancorp, Inc. wishes to loan
funds to the Trust pursuant to this Agreement.
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NOW, THEREFORE, in consideration of these premises and the
mutual promises contained herein, the parties hereto agree as follows:
Section 1. The Loan and Related Matters.
1.1. The Loan. Subject to the terms and conditions of this
Agreement, Long Island Bancorp, Inc. agrees to make a loan to the Trust in a
principal equal to $23,784,300.00 (the "Loan"). The Loan shall be made and
maintained at the principal office of Long Island Bancorp,
Inc. in Melville, New York.
1.2. The Borrowing. Amounts borrowed under this Section 1 shall
be made available to the Trust by remitting the same to the Trustee in the
manner the Trustee shall direct.
1.3. The Note. The Loan shall be evidenced by a single
promissory note of the Trust (as modified and supplemented and in effect from
time to time, the "Note") in substantially the form of Exhibit A attached
hereto, dated the date of the delivery of the Note to Long Island Bancorp, Inc.,
payable to Long Island Bancorp, Inc. in equal quarterly installments, on March
31, June 30, September 30 and December 31, during the period from, and
including, the date of the Note to, but excluding, the tenth anniversary of such
date, subject to any prepayment made pursuant to Section 1.6 hereof. Without
regard to the principal amount of the Note stated on its face, the actual
principal amount at any time outstanding and owed by the Trust on account of the
Note shall be the amount of the disbursement of the Loan made by Long Island
Bancorp, Inc. under Section 1.1 hereof less all payments of principal actually
received by Long Island Bancorp, Inc.
1.4. Use of Proceeds. The proceeds of the Loan shall be applied
by the Trustee, within a reasonable period of time after the receipt thereof, to
purchase shares of Common Stock.
1.5. Exempt Loan. The obligation of Long Island Bancorp, Inc. to
make a loan under Section 1.1 hereof and the Trust's obligation to borrow under
Section 1.2 hereof are conditioned, in either case, upon the Loan satisfying the
requirements of an "exempt loan" within the meaning of section
54.4975-7(b)(1)(iii) of the Department of Treasury regulations.
1.6. Prepayments. The Trust shall have the right
to prepay the Loan in whole or in part at any time or from
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time to time without premium or penalty; provided, however, that (i) unless
waived by Long Island Bancorp, Inc., the Trustee shall give Long Island Bancorp
Inc. notice (which notice shall be irrevocable) of each prepayment not later
than 10:00 a.m., Eastern Standard Time, at least three business days prior to
the date of such prepayment, specifying the amount of the Loan to be prepaid and
the date of such prepayment (which shall be a business day) and (ii) upon
prepayment of any principal amount of the Loan, the Trust shall pay any accrued
interest on the amount so prepaid.
1.7. Interest. The Trust shall pay to Long Island Bancorp, Inc.
interest on the unpaid principal amount of the Loan for the period from, and
including, the date of the Note (as provided in Section 1.3 hereof) to, but
excluding, the date such borrowing shall be paid in full at the rate of 6.15%
per annum, payable quarterly on March 31, June 30, September 30 and December 31,
and computed on the basis of a 360-day year and actual days elapsed. To the
extent the Trust fails to make any interest payment on the due date for such
payment hereunder, the Trust's obligation to make such payment shall continue
until such interest is paid in full.
1.8. Form of Payment. All payments of principal, interest and
other amounts to be made by the Trust under this Section 1 and the Note shall be
made in lawful currency of the United States of America, in immediately
available funds, without deduction, set-off or counterclaim to Long Island
Bancorp, Inc. at its principal office in Melville, New York, no later than 1:00
p.m., Eastern Standard Time, on the date on which such payment shall become due
(each such payment made after such time on the due date to be deemed to have
been made on the next succeeding business day). If the due date of any payment
under this Section 1 or the Note would otherwise fall on a day that is not a
business day such due date shall be deemed to be the next preceding business
day.
1.9. Limited Recourse. Long Island Bancorp, Inc. will have no
recourse against (i) the Trustee, in its individual capacity, (ii) the assets of
the Trust or (iii) any other assets related to the ESOP, except that, to the
extent not prohibited by ERISA or the Code, Long Island Bancorp, Inc. shall have
recourse against any unallocated shares of Common Stock held in the ESOP
suspense account (as described in Paragraph 2.2(d) hereof) that were acquired
with the proceeds of the Loan and any earnings thereon.
Section 2. Representations and Warranties.
2.1. Representations and Warranties of Long Island Bancorp, Inc.
Long Island Bancorp, Inc. hereby represents, warrants and covenants to the
Trust as follows:
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(a) Organization and Corporate Power. Long
Island Bancorp, Inc. has been duly incorporated and is validly existing in good
standing under the laws of the State of Delaware; Long Island Bancorp, Inc. has
the corporate power and authority to own and lease its property and to conduct
its business as it is currently being conducted and to perform this Agreement,
the Pledge Agreement by and between the Trustee and Long Island Bancorp, Inc.
dated the date hereof (the "Pledge Agreement") and the Stock Order and
Acknowledgment Form, as amended, by and between the Trustee and Long Island
Bancorp, Inc. (the "Stock Order Form"). The Bank, as of the date hereof, is duly
organized and in existence under the laws of the United States of America as a
federally chartered savings bank of stock form, with its charter in full force
and effect; the Office of Thrift Supervision has not appointed a conservator or
receiver for the Bank; and the Bank has the corporate power and authority to own
and lease its property and to conduct its business as it is currently being
conducted and to perform this Agreement and the Trust Agreement. (This
Agreement, the Pledge Agreement, the Stock Order Form and the Trust Agreement
are hereinafter collectively referred to as the "ESOP Documents.")
(b) Authorization and Enforceability. The
ESOP Documents have been duly authorized, executed and delivered by Long Island
Bancorp, Inc. and the Bank, as applicable, and constitute valid and binding
agreements enforceable against Long Island Bancorp, Inc. and the Bank, as
applicable, in accordance with their terms and conditions, except that (i) the
enforceability of the ESOP Documents may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws of general
applicability affecting the enforcement of creditors' rights generally and
general principles of equity regardless of whether considered in a proceeding at
law or in equity and (ii) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
(c) Governmental Consents. No consent,
approval, authorization or order of, or notification to or filing with, any
court or governmental agency or body is required to be obtained or made by the
Trust, Long Island Bancorp, Inc. and the Bank, as applicable, in connection with
the execution, delivery and performance by Long Island Bancorp, Inc. and the
Bank, as applicable, of the ESOP Documents or the consummation of any
transaction contemplated by the ESOP Documents, except such as have been, or
prior to the date of the consummation of the Conversion will have been,
obtained or made, as required.
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(d) Conflicting Agreements, etc. None of the
execution, delivery and performance of the ESOP Documents or the consummation of
any transaction contemplated by the ESOP Documents, or the fulfillment of the
terms of the ESOP Documents will (i) conflict with, result in a breach of, or
constitute a default under, the charter or by-laws of Long Island Bancorp, Inc.
and the Bank, as applicable, or the terms of any indenture or other agreement or
instrument to which Long Island Bancorp, Inc. or the Bank, as applicable, is a
party or by which either is bound or any statute, rule, approval, order or
regulation applicable to Long Island Bancorp, Inc. and the Bank, as applicable,
of any court, regulatory body, or arbitrator having jurisdiction over Long
Island Bancorp, Inc. and the Bank, as applicable, or any state or federal
statute applicable to Long Island Bancorp, Inc. and the Bank, as applicable, or
(ii) require the consent of any shareholder of Long Island Bancorp, Inc. and the
Bank, as applicable, or other person (except as provided in Paragraph 2.1(c)
hereof).
(e) Litigation. Except as may be disclosed
in information made available to the public by Long Island Bancorp, Inc. as
reflected in filings and disclosures required by Federal, state or local
statutes, rules, orders or regulations or as otherwise made available to the
public, there is no pending or, to the best knowledge of Long Island Bancorp,
Inc. threatened action, suit or proceeding before any court or government
agency, authority or body or any arbitrator involving Long Island Bancorp, Inc.
or the Bank that can be reasonably expected to result, either individually or in
the aggregate, in any material adverse change in the financial position,
stockholders' equity or results of operations of Long Island Bancorp, Inc.
(f) Underwriters Not Fiduciaries. No
underwriter with respect to the subscription and community offering of the
Common Stock is a fiduciary with respect to the ESOP.
(g) No Commissions. No commissions (within the
meaning of section 408(e) of ERISA) is payable by the Trust in connection
with its acquisition of Common Stock with the proceeds of the Loan.
(h) Exempt Loan. The Loan will be an "exempt
loan" as the term is defined under section 54.4975-7(b)(1)(iii) of the
Department of Treasury regulations,
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provided the Trustee determines that the Interest rate is not more than a
reasonable rate of interest (within the meaning of section 54.4975-7(b)(7) of
the Department of Treasury regulations); and the transactions contemplated by
this Agreement are not "prohibited transactions" with the meaning of section
4975 of the Code or section 406(a) of ERISA.
(i) No Restrictions on Transfer of Common Stock.
The Common Stock is not subject to any restriction on transfer by the
Trustee under applicable Federal securities law.
2.2. Representations and Warranties of the Trustee. The Trustee,
solely in its capacity as Trustee and not individually, hereby represents,
warrants and covenants to Long Island Bancorp, Inc. as follows:
(a) Purchase of Common Stock. Within a
reasonable period of time after the receipt of the proceeds of the Loan, the
Trust will apply such proceeds to the purchase of shares of Common Stock.
(b) Investment. The Trust is acquiring the
shares of Common Stock solely for investment purposes and not with a view to any
distribution thereof or sale in connection therewith; provided, however, that
the acquisition, holding, transfer and distribution of shares of Common Stock is
governed by, and subject to, the terms of the Trust Agreement, the ESOP, ERISA
and the Code.
(c) Trust Administration. The Trustee,
solely within the responsibilities allocated to it pursuant to the Trust
Agreement, will administer the Trust according to the terms of the Trust
Agreement, unless to do so would contravene applicable law.
(d) Suspense Account. Until payment in full
of the principal amount of the Loan, all interest thereon and all other amounts
payable by the Trust under Section 1 hereof, all shares of Common Stock
purchased by the Trust with the proceeds of the Loan shall be added to and
maintained in a suspense account and will be withdrawn therefrom only as
provided under the applicable provisions of the ESOP and the Trust Agreement.
(e) ESOP Matters. The Trustee, to the extent
within the responsibilities allocated to it pursuant to the Trust Agreement ,
(i) will cause (A) the ESOP to be operated and administered as a qualified plan
under section 401(a) of the Code and as an "employee stock ownership plan" under
section 4975(e)(7) of the Code and (B) the Trust to be exempt from federal
income taxation under section 501(a) of the Code
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and, in connection with each of the foregoing, will comply and will cause the
ESOP and the Trust to comply, in all material respects, with the requirements of
the Code and ERISA applicable to the Trustee, the ESOP and the Trust and (ii)
will not take or fail to take any action that, in either case, would adversely
affect the status of (A) the ESOP as a qualified plan under section 401(a) of
the Code or as an "employee stock ownership plan" within the meaning of section
4975(e)(7) of the Code, (B) the Trust as tax-exempt under section 501(a) of the
Code or (C) the Loan as an "exempt loan" within the meaning of section
54.4975-7(b)(1)(iii) of the Department of Treasury regulations.
Section 3. Representations and Warranties of
United States Trust Company of New York ("U.S. Trust"), in its
individual capacity.
U.S. Trust, not as Trustee, but solely in its
individual capacity, represents and warrants to Long Island
Bancorp, Inc. that:
3.1. U.S. Trust has full power, authority and
legal right to make and perform the Trust Agreement and (with
respect to this Section 3) this Agreement.
3.2. The execution, delivery and performance by (i) U.S. Trust
of the Trust Agreement and (with respect to this Section 3) this Agreement and
(ii) U.S. Trust, as trustee under the Trust Agreement, of this Agreement and the
Note, do not violate any provision of law, any rules, regulations or orders
applicable to U.S. Trust; provided, however, that U.S. Trust makes no
representation or warranty in this Section 3.2 as to whether its execution,
delivery or performance of this Agreement (other than this Section 3) or the
Note complies with or violates any provision of ERISA or the Code or the
Securities Act of 1933 and the rules and regulations thereunder or any Federal
or state statute or regulation applicable to Long island Bancorp, Inc. or the
Bank.
3.3. No authorization, approvals or consents of, and no filings
or registrations with, any governmental or regulatory authority or agency are
necessary for the execution, delivery or performance by (i) U.S. Trust of the
Trust Agreement or (with respect to this Section 3) this Agreement or (ii) U.S.
Trust, as trustee under the Trust Agreement, this Agreement and the Note, or any
transaction contemplated hereby or thereby, or for the validity or
enforceability against U.S. Trust hereof or thereof, except for filings with the
Internal Revenue Service, the Department of Labor or the Securities and Exchange
Commission that may from time to time be required by ERISA, the code or other
applicable law.
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3.4. The Trust Agreement and (with respect to this Section 3)
this Agreement have each been duly authorized, executed and delivered by U.S.
Trust and each constitutes a valid and binding agreement, in each case,
enforceable against U.S. Trust, in accordance with its terms and conditions,
except as enforceability may be limited by bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other similar laws relating to
creditors' rights or general principals of equity now or hereafter in effect
(regardless of whether enforcement is sought in a proceeding at law or in
equity).
Section 4. Conditions Precedent.
The obligations of the Trust to borrow pursuant to Section 1.2
hereof shall be subject to the satisfaction of the following conditions
precedent:
4.1. The Trustee shall have received from outside counsel for
Long Island Bancorp, Inc. an opinion satisfactory in form and substance to the
Trustee, bearing even date herewith, to the effect that:
(a) as of the effective date of the ESOP, the
ESOP is qualified under sections 401(a) of the Code and constitutes an "employee
stock ownership plan" (within the meaning of section 4975(e)(7) of the Code and
section 407(d)(6) of ERISA), provided that in rendering such opinion such
counsel may rely on certain representations of the Bank;
(b) the Common stock to be purchased by the
Trustee on behalf of the Trust constitutes "employer securities" (within the
meaning of section 409(1) of the Code and section 407(d)(1) Of ERISA) and
"qualifying employer securities" (within the meaning of section 407(d)(5) of of
ERISA);
(c) the Loan constitutes an "exempt loan"
(within the meaning of section 54.4975-7(b)(1)(iii) of the Department of
Treasury regulations), provided that in rendering such opinion such counsel may
rely on certain representations of the Bank and provided further, that such
counsel may assume the Trustee has determined that (I) the interest rate payable
on the Loan is not in excess of a reasonable rate of interest (within the
meaning of section 54.4975-7(b)(7) of the Department of Treasury regulations)
and (ii) the other terms of the Loan, taken as a whole, are at least as
favorable to the Trust as could reasonably be expected to result from an arm's
length negotiation between independent parties; and
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(d) no portion of the amount paid by the
Trust in connection with its acquisition of Common Stock constitutes a
commission (within the meaning of section 408(e) of ERISA).
4.2. The Borrower shall have received from counsel for Long
Island Bancorp, Inc. a favorable opinion satisfactory in form and substance to
the Trustee, bearing even date herewith to the effect that:
(a) Long Island Bancorp, Inc. has been duly
incorporated and is validly existing in good standing under the laws Of the
State of Delaware; Long Island Bancorp, Inc. has the corporate power and
authority to own and lease its property and to conduct its business as it is
currently being conducted; Long Island Bancorp, Inc. is duly qualified as a
foreign corporation to transact business and is in good standing in the State of
New York; Long Island Bancorp, Inc. has the corporate power and authority to
issue and deliver the Common Stock to the ESOP; and the issuance and delivery of
the Common Stock to the ESOP has been duly authorized by all requisite corporate
action;
(b) the Bank, as of the date hereof, is duly
organized and in existence under the laws of the United States of America as a
federally chartered savings bank of stock form, with its charter in full force
and effect; the Office of Thrift Supervision has not appointed a receiver or
conservator for the Bank; the Bank has the corporate power and authority to own
and lease its property and to conduct its business as it is currently being
conducted;
(c) each of Long island Bancorp, Inc. and the
Bank has the corporate power and authority to enter into and perform each of the
ESOP Documents to which it is a party and to carry out the transactions
contemplated by the ESOP Documents, including the establishment of the ESOP;
(d) the execution and delivery by each of
Long Island Bancorp, Inc. and the Bank of the ESOP Documents to which it is a
party, and the performance by it of its obligations under the ESOP Documents,
have been duly authorized by all requisite corporate action on its part;
(e) each of Long Island Bancorp, Inc. and the
Bank has duly executed and delivered each of the ESOP Documents to which it
is a party; and
(f) each of the ESOP Documents to which Long
Island Bancorp, Inc. or the Bank is a party constitutes the legal, valid and
binding obligation of Long Island Bancorp, Inc. or the Bank, as the case may
be, enforceable against Long Island Bancorp, Inc. or the Bank, as the
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case may be, in accordance with its respective terms.
The opinions of counsel for Long Island Bancorp, Inc. described
above as to the enforceability in accordance with their respective terms of any
of the ESOP Documents may be subject to the exceptions that (i) such
enforceability may be limited by (A) bankruptcy, insolvency reorganization,
moratorium or other similar laws of general applicability affecting the
enforcement of creditors' rights generally and (B) general principles of equity
regardless of whether considered in a proceeding in equity or at law and (ii)
the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
4.3. The Trustee shall have received from a financial advisor
selected by it an opinion satisfactory in form and substance to the Trustee,
bearing even date herewith, to the effect that the price to be paid for the
Common Stock to be purchased by the Trustee on behalf of the Trust using the
proceeds of the Loan is not in excess of "adequate consideration" (within the
meaning of section 3(18) of ERISA). The Trustee shall use its best efforts to
obtain such an opinion.
4.4. The Trustee shall have determined that the interest rate
payable on the Loan is not in excess of a reasonable rate Of interest (within
the meaning of section 54.4975-7(b)(7) of the Department of Treasury
regulations).
4.5. The Bank shall have provided the Trustee with copies of all
legal documents and proceedings the Trustee has requested in connection with the
execution and delivery of this Agreement and the Note.
4.6 The Trustee shall have received payment of the expenses
incurred by it to the date of the closing of the Loan including, but not limited
to, its reasonable legal fees and fees incurred in connection with the valuation
of the Common Stock and the determination of the fairness of the terms of the
Loan.
Section 5. Covenants of the Bank.
The Bank agrees that for as long as the Trust holds any shares
of Common Stock purchased with the proceeds of the Loan (unless the Trustee
shall otherwise consent in writing):
5.1. ESOP Matters. The Bank (i) will cause (A) the ESOP to be
operated and administered as a qualified plan
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under section 401(a) of the Code and as an "employee stock ownership plan" under
section 4975(e)(7) of the Code and (B) the Trust to be exempt from federal
income taxation under section 501(a) of the Code and, in connection with each of
the foregoing, will comply and will cause the ESOP and the Trust to comply with
any changes in sections 401(a), 501(a) or 4975(e)(7) or any other applicable
sections of the Code or ERISA, (ii) will make all necessary filings with respect
to the ESOP and the Trust, including, without limitation, the filings required
to be made with the Internal Revenue Service and the Department of Labor, (iii)
will file on a timely basis with the Internal Revenue Service for a
determination letter that (A) the ESOP, as of the date of such letter, meets the
requirements for qualification under section 401(a) of the Code and constitutes
an "employee stock ownership plan" within the meaning of section 4975(e)(7) of
the Code and (B) the Trust is exempt from federal income taxation under section
501(a) of the Code and, in the event that the Internal Revenue Service imposes
conditions for the issuance of such a letter, will comply with all such
conditions, including, without limitation amending or otherwise modifying the
ESOP and (iv) will not take or fail to take any action that, in either case,
would adversely affect the status of (A) the ESOP as a qualified plan under
section 401(a) of the Code or as an "employee stock ownership plan" within the
meaning of section 4975(e)(7) of the Code, (B) the Trust as tax-exempt under
section 501(a) of the Code or (C) the Loan as an "exempt loan" within the
meaning of section 54.4975-7(b)(1)(iii) of the Department of Treasury
regulations.
5.2. ESOP Compliance. The Bank shall furnish to the Trustee (i)
copies of each annual report or return relating to the ESOP, as well as all
schedules and attachments thereto, within thirty days after the filing thereof
and (ii) such additional information concerning the ESOP as the Trustee may
reasonably request.
Section 6. Covenant of Long Island Bancorp, Inc.
So long as any amount remains unpaid on the Note, to the extent
the Bank has not made contributions to the Trust in amounts and at times
sufficient to enable the Trustee to make payments required under the terms of
this Agreement and the Note and such payments have not otherwise been made, Long
Island Bancorp, Inc. shall cause the Bank to make such contributions.
Section 7. Remedies Upon Default.
If (i) at any time during the term of the Loan the ESOP is terminated
or (ii) the Trust shall default in the
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payment of the principal amount of the Loan when due as provided in Section 1.3
hereof and in the Note and such default shall have continued for two business
days and shall be continuing, then, in either case, the entire amount of any
unpaid principal and interest in respect of the Loan shall immediately become
due and payable. If such unpaid amounts are not immediately paid by the Trust to
Long island Bancorp, Inc., then Long island Bancorp, Inc. may exercise any or
all of the rights and remedies available to it under any applicable law;
provided, however, that the number of shares of Common Stock held in the Trust
as to which Long Island Bancorp, Inc. may exercise any such rights and remedies
may not exceed the number of shares held in the ESOP suspense account (as
described in Paragraph 2.2(d) hereof) which is then equal in current value to
the amount of the default under the Note. Remedies may only be exercised to the
extent consistent with the restrictions on remedies set forth in section
408(b)(3) Of ERISA and the regulations thereunder and section 4975(d)(3) of the
Code and the regulations thereunder.
Section 8. Miscellaneous.
8.1 Expenses. Except as otherwise provided in this Agreement,
Long Island Bancorp, Inc. shall pay all of its own expenses incurred in
connection with this Agreement. To the extent not paid from the Trust, the Bank
shall pay directly, or make contributions to the Trust in an amount sufficient
to enable the Trust to pay, all of the expenses of the Trust in connection with
the negotiation, authorization, preparation, execution, delivery and performance
of this Agreement, including, without limitation, the fees and expenses
reasonably incurred by the agents, representatives, counsel, financial advisors
and consultants of the Trust and the Trustee.
8.2. Representations and Warranties. The representations,
warranties, covenants and agreements made in this Agreement shall survive the
date hereof and the date amounts are remitted to the Trust in accordance with
Section 1.2 hereof.
8.3. Trust Agreement. Unless the context otherwise requires, the
terms and provisions of the Trust Agreement relating to the nature of the
responsibilities of the Trustee are incorporated herein by reference and made
applicable to this Agreement. To the extent that any of the provisions of this
Agreement are inconsistent with the provisions of the Trust Agreement, the
provisions of the Trust Agreement shall control.
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8.4. Applicable Law. This Agreement and the Note shall be
governed by and construed in accordance with the laws of the State of New York
(without regard to conflicts of law), to the extent not preempted by applicable
Federal law.
8.5. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Trust may not assign its rights or
obligations hereunder or under the Note without the prior written consent of
Long Island Bancorp, Inc.
8.6. Enforceability. In the event that any provision of this
Agreement shall be declared unenforceable by a court of competent jurisdiction,
the provision shall be stricken herefrom and the remainder of this Agreement
shall remain binding on the parties hereto. In the event any provision of this
Agreement shall be so declared unenforceable due to its scope or breadth, then
the provision shall be narrowed to the scope or breadth permitted by law.
8.7. Recapitalizations, Exchanges, Etc. Affecting Common Stock.
All of the provisions of this Agreement shall apply, to the full extent set
forth herein with respect to the shares of Common Stock purchased by the Trustee
on behalf of the Trust from Long Island Bancorp, Inc. using the proceeds of the
Loan, to any and all shares of capital stock of Long Island Bancorp, Inc. or any
successor or assign of Long Island Bancorp, Inc. (whether by merger,
consolidation, sale of assets or otherwise) that may be issued in respect of, in
exchange for, or in substitution of, such shares of Common Stock, by reason of
any stock dividend, split, reverse split, combination, recapitalization,
reclassification, merger, consolidation or otherwise.
8.8. The Code and ERISA Compliance. It is hereby intended by the
parties that the transactions contemplated by this Agreement will comply with
sections 409(.1) and 4975 of the Code and section 406 of ERISA. The parties
hereto hereby agree that the provisions of this Agreement will be interpreted so
as to ensure such compliance.
8.9. Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and
the same instrument.
8.10. Amendments. This Agreement may not be modified, amended,
supplemented or waived with respect to the obligations of a party hereto, except
by an instrument in writing signed by that party.
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8.11. Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to a party hereto upon any breach or default
under this Agreement of the other party hereto shall impair any such right,
power or remedy of the non-breaching or non-defaulting party nor shall it be
construed to be a waiver of any such breach or default, or any acquiescence
therein, or in any similar breach or default thereafter occurring; nor shall any
waiver of any single breach of default be deemed a waiver of any other breach or
default theretofore or thereafter occurring.
8.12. Descriptive Headings. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for convenience
only and do not constitute a part of this Agreement.
8.13. Notices. All communications hereunder shall be in writing
and effective only upon receipt and, if sent to Long Island Bancorp, Inc., shall
be mailed, telecopied, delivered or telegraphed and confirmed to it at ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇ ▇▇▇▇▇▇, Executive Vice
President & Treasurer, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, First Vice President-Legal, or if
sent to the Trust, shall be mailed, telecopied, delivered or telegraphed and
confirmed to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇;
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President.
8.14. Further Assurances. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use all reasonable efforts
to take or cause to be taken all action and to do or cause to be done all things
necessary, proper or advisable to consummate and make effective the transactions
contemplated by this Agreement.
8.15. Certain Limitations. Except with respect to Section 3
hereof, U.S. Trust is executing and delivering this Agreement and the Note
solely as trustee under the Trust Agreement and not in its individual capacity
and in no case whatsoever shall U.S. Trust (or any person or entity acting as
successor trustee under the Trustee Agreement) be personally liable for the
obligations of the Trust hereunder or under the Note.
8.16. Rescission. The parties hereto agree that the purpose of
this Agreement is to provide for the making of an "exempt loan" (within the
meaning of section 54.4975 7(b)(1)(iii) of the Department of Treasury
regulations) to the Trust to enable the Trustee to purchase shares of Common
Stock on behalf of the Trust. If:
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(a) the Bank shall notify the Trustee that,
in the Bank's determination, it is not possible practicable or desirable to
revise the ESOP or the Trust Agreement in a manner that will enable the Bank to
obtain a favorable determination letter from the Internal Revenue Service that
the ESOP, as of the date of such letter, meets the requirements for
qualification under section 401(a) of the Code and constitutes an "employee
stock ownership plan" within the meaning of section 4975(e)(7) of the Code; or
(b) the purchase of shares of Common Stock
with the proceeds of the Loan is rescinded pursuant to any governmental
requirement, prohibition or decree of any court order, writ or judgment, then
this Agreement shall be considered null and void abinitio and, if the Loan shall
have been made, the Trustee shall transfer to Long Island Bancorp, Inc. all
shares of Common Stock purchased with the proceeds of the Loan and the Trust
shall have no further obligations under this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of this 14th day of April, 1994.
LONG ISLAND BANCORP, INC.
By /S/ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
Treasurer
THE LONG ISLAND SAVINGS BANK, FSB
By /S/ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
EVP & Treasurer
UNITED STATES TRUST COMPANY OF NEW
YORK, solely as trustee under the
trust agreement referred to above
By /S/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
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UNITED STATES TRUST COMPANY OF NEW
YORK, in its individual capacity
By: /S/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
