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AGREEMENT AND PLAN OF MERGER between NORTH FORK BANCORPORATION, INC. and GREENPOINT FINANCIAL CORP. Dated as of February 15, 2004
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vi AGREEMENT AND PLAN OF MERGER, dated as of February 15, 2004 (this "Agreement"), by and between North Fork Bancorporation, Inc., a Delaware corporation ("North Fork") and GreenPoint Financial Corp., a Delaware corporation ("GreenPoint"). WHEREAS, the Boards of Directors of North Fork and GreenPoint have determined that it is in the best interests of their respective companies and their stockholders to consummate the business combination transaction provided for herein in which GreenPoint will, subject to the terms and conditions set forth herein, merge with and into North Fork, with North Fork being the surviving entity (the "Merger"); WHEREAS, the parties intend that the Merger shall qualify as a reorganization under the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code"), for federal income tax purposes; and WHEREAS, the parties desire to make certain representations, warranties and agreements in connection with the Merger and also to prescribe certain conditions to the Merger. NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and intending to be legally bound hereby, the parties agree as follows: 1.1. The Merger. Upon the terms and subject to the conditions of this Agreement, at the Effective Time (as defined in Section 1.2 hereof), GreenPoint shall merge with and into North Fork. North Fork shall be the surviving corporation (hereinafter sometimes called the "Surviving Corporation") in the Merger and shall continue its corporate existence under the laws of the State of Delaware. The name of the Surviving Corporation shall continue to be "North Fork Bancorporation, Inc." Upon consummation of the Merger, the separate corporate existence of GreenPoint shall terminate. 1.2. Effective Time. Subject to the provisions of this Agreement, a certificate of merger (the "Certificate of Merger") shall be duly prepared, executed by North Fork as the Surviving Corporation and thereafter filed with the Secretary of State of the State of Delaware, as provided in the Delaware General Corporation Law (the "DGCL"), on the Closing Date (as defined in Section 9.1). The Merger shall become effective upon the filing of the Certificate of Merger with the Secretary of State of the State of Delaware or at such time thereafter as is provided in the Certificate of Merger (the "Effective Time"). 1.3. Effects of the Merger. At and after the Effective Time, the Merger shall have the effects set forth in the DGCL. 1.4 Conversion of GreenPoint Common Stock. (a) At the Effective Time, subject to Section 2.2(e), each share of common stock, par value $0.01 per share, of GreenPoint (the "GreenPoint Common Stock") issued and outstanding immediately prior to the Effective Time (other than shares of GreenPoint Common Stock (x) held in GreenPoint's treasury or (y) held by North Fork or GreenPoint (except for Trust Account Shares and DPC Shares (as such terms are defined in Section 1.4(b) hereof)), shall, by virtue of this Agreement and without any action on the part of the holder thereof, be converted into and exchangeable for 1.0514 shares (the "Exchange Ratio") of common stock, par value $0.01 per share, of North Fork (the "North Fork Common Stock"). All of the shares of GreenPoint Common Stock converted into North Fork Common Stock pursuant to this Section 1.4(a) shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each certificate (each, a "Certificate") previously representing any such shares of GreenPoint Common Stock shall thereafter only represent the right to receive (i) the number of whole shares of North Fork Common Stock and (ii) the cash in lieu of any fractional shares into which the shares of GreenPoint Common Stock represented by such Certificate have been converted pursuant to this Section 1.4(a) and Section 2.2(e) hereof; subject , however , to the Surviving Corporation's obligation to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by GreenPoint on such shares of GreenPoint Common Stock in accordance with the terms of this Agreement on or prior to the Effective Time and which remain unpaid at the Effective Time. Certificates previously representing shares of GreenPoint Common Stock shall be exchanged for certificates representing whole shares of North Fork Common Stock and cash in lieu of fractional shares issued in consideration therefor upon the surrender of such Certificates in accordance with Section 2.2 hereof, without any interest thereon. If, between the date of this Agreement and the Effective Time, the shares of North Fork Common Stock shall be changed into a different number or class of shares by reason of any reclassification, recapitalization, split-up, combination, exchange of shares, readjustment or other similar changes in capitalization, or a stock dividend thereon shall be declared with a record date within said period, the Exchange Ratio shall be appropriately and equitably adjusted. (b) At the Effective Time, all shares of GreenPoint Common Stock that are owned by GreenPoint as treasury stock and all shares of GreenPoint Common Stock that are owned by North Fork or GreenPoint (other than shares of GreenPoint Common Stock (x) held directly or indirectly in trust accounts, managed accounts and the like or otherwise held in a fiduciary capacity for the benefit of third parties (any such shares, and shares of North Fork Common Stock which are similarly held, whether held directly or indirectly by North Fork or GreenPoint, as the case may be, being referred to herein as "Trust Account Shares") or (y) held by North Fork or GreenPoint or any of their respective Subsidiaries in respect of a debt previously contracted (any such shares of GreenPoint Common Stock, and shares of North Fork Common Stock which are similarly held, whether held directly or indirectly by North Fork or GreenPoint, being referred to herein as "DPC Shares")) shall be cancelled and shall cease to exist and no stock of North Fork, cash or other consideration shall be delivered in exchange therefor. All shares of North Fork Common Stock that are owned by GreenPoint (other than Trust Account Shares and DPC Shares) shall become treasury stock of North Fork. 1.5. Stock Options; Stock Units. (a) At the Effective Time, each option granted by GreenPoint to purchase shares of GreenPoint Common Stock (a "GreenPoint Option") under GreenPoint's Amended and Restated 1994 Stock Incentive Plan, 1999 Stock Incentive Plan, 2001 Stock Plan, Non-Employee Directors Stock Option Plan, Non-Employee Directors 2001 Stock Option Plan, and Headlands Mortgage Company 1997 Executive and Non-Employee Director Stock Option Plan (collectively, the "GreenPoint Option Plans"), which is outstanding and unexercised immediately prior thereto shall, by virtue of the Merger and without any further action on the part of GreenPoint or any holder thereof, cease to represent a right to acquire shares of GreenPoint Common Stock and shall be converted automatically into an option to purchase shares of North Fork Common Stock in an amount and at an exercise price determined as provided below, and each GreenPoint Option shall otherwise remain subject to the terms and conditions thereof: (i) the number of shares of North Fork Common Stock to be subject to the new option shall be equal to the product of (i) the number of shares of GreenPoint Common Stock subject to the original option and (ii) the Exchange Ratio, provided that any fractional share of North Fork Common Stock resulting from such multiplication shall be rounded to the nearest whole share; and (ii) the exercise price per share of North Fork Common Stock under the new option shall be equal to (i) the exercise price per share of GreenPoint Common Stock under the original option divided by (ii) the Exchange Ratio, provided that such exercise price shall be rounded to the nearest cent. (iii) The adjustment provided herein with respect to any GreenPoint Options that are intended to be "incentive stock options" (as defined in Section 422 of the Code) shall be and is intended to be effected in a manner which is consistent with Section 424(a) of the Code, and to the extent it is not so consistent, such Section 424(a) shall override anything to the contrary contained herein. (b) At the Effective Time, each award or account (including the Plan Share Awards (as defined in GreenPoint's Recognition and Retention Plan for Employees (the "RR Plan"), stock equivalents, deferred stock and stock units, but excluding GreenPoint Options) in respect of shares of GreenPoint Common Stock outstanding immediately prior to the Effective Time ("GreenPoint Award") that has been established, made or granted under the RR Plan, GreenPoint Deferred Compensation Plan and GreenPoint 1993 Directors Deferred Fee Stock Unit Plan (collectively "GreenPoint Stock Unit Plans") shall be converted into a similar instrument in respect of shares of North Fork Common Stock. The number of shares of North Fork Common Stock subject to each such converted award shall be equal to the number of shares of GreenPoint Common Stock subject to the GreenPoint Award, multiplied by the Exchange Ratio (rounded to the nearest whole share). The other terms and conditions of each GreenPoint Award, the GreenPoint Stock Unit Plans and/or agreements governing the GreenPoint Awards, shall continue to apply in accordance with their terms and conditions. (c) GreenPoint and North Fork shall take all actions with respect to the GreenPoint Options, GreenPoint Awards, GreenPoint Stock Unit Plans and GreenPoint Option Plans that are necessary to implement the provisions of this Section 1.5. 2 1.6. North Fork Common Stock. Except for shares of North Fork Common Stock owned by GreenPoint (other than Trust Account Shares and DPC Shares), which shall be converted into treasury stock of North Fork as contemplated by Section 1.4(b) hereof, the shares of North Fork Common Stock issued and outstanding immediately prior to the Effective Time shall be unaffected by the Merger and such shares shall remain issued and outstanding. 1.7. Certificate of Incorporation and By-Laws. The Certificate of Incorporation of North Fork as in effect immediately prior to the Effective Time shall be the Certificate of Incorporation of the Surviving Corporation. The By-laws of North Fork as in effect immediately prior to the Effective Time shall be the By-laws of the Surviving Corporation. 1.8. Alternative Transaction Structures. The parties agree that North Fork may change the method of effecting the business combination with GreenPoint, including, without limitation, by merging a wholly owned direct Subsidiary (as defined in Section 3.3) of North Fork into GreenPoint, or by merging GreenPoint into a wholly owned direct Subsidiary of North Fork, and GreenPoint shall cooperate in such efforts, including by entering into an appropriate amendment to this Agreement (to the extent such amendment only changes the method of effecting the business combination and does not substantively affect this Agreement or the rights and obligations of the parties or their respective stockholders hereunder); provided , however , that any such Subsidiary shall become a party to, and shall agree to be bound by, the terms of this Agreement and that any actions taken pursuant to this Section 1.8 shall not (i) alter or change the kind or amount of consideration to be issued to holders of GreenPoint Common Stock or the treatment of GreenPoint Options or GreenPoint Awards as provided for in this Agreement, (ii) adversely affect the tax consequences of the transaction to the holders of GreenPoint Common Stock, (iii) materially delay receipt of any Requisite Regulatory Approval (as defined in Section 7.1(c)), or (iv) otherwise cause any closing condition not to be capable of being fulfilled (unless duly waived by the party entitled to the benefits thereof). 1.9. Directors. At and immediately after the Effective Time, the directors of the Surviving Corporation shall consist of the directors of North Fork in office immediately prior to the Effective Time together with five additional directors of GreenPoint as provided in Section 6.13 hereof, until their respective successors are duly elected or appointed and qualified. 1.10. Officers. At and immediately after the Effective Time, the officers of the Surviving Corporation shall consist of the officers of North Fork in office immediately prior to the Effective Time. 1.11. Tax Consequences. It is intended that the Merger shall constitute a reorganization within the meaning of Section 368(a) of the Code, and that this Agreement shall constitute a "plan of reorganization" for the purposes of the Code. 2.1. North Fork to Make Shares Available. At or prior to the Effective Time, North Fork shall deposit, or shall cause to be deposited, with a bank or trust company (which may be a Subsidiary of North Fork) (the "Exchange Agent") selected by North Fork and reasonably acceptable to GreenPoint, for the benefit of the holders of Certificates, for exchange in accordance with this Article II, certificates representing the shares of North Fork Common Stock and the cash in lieu of any fractional shares (such cash and certificates for shares of North Fork Common Stock, together with any dividends or distributions with respect thereto, being hereinafter referred to as the "Exchange Fund") to be issued pursuant to Section 1.4(a) and paid pursuant to Section 2.2(a) hereof in exchange for outstanding shares of GreenPoint Common Stock. 2.2. Exchange of Shares. (a) As soon as practicable after the Effective Time, and in no event more than five business days thereafter, the Exchange Agent shall mail to each holder of record of a Certificate or Certificates a customary form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and instructions for use in effecting the surrender of the Certificates in exchange for certificates representing the shares of North Fork Common Stock and the cash in lieu of fractional shares into which the shares of GreenPoint Common Stock represented by such Certificate or Certificates shall have been converted pursuant to this Agreement. Upon surrender of a Certificate for exchange and cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, the holder of such Certificate shall be entitled to receive promptly in exchange therefor (x) a certificate representing that number of whole 3 shares of North Fork Common Stock to which such holder of GreenPoint Common Stock shall have become entitled pursuant to the provisions of Article I hereof and (y) a check representing the amount of cash in lieu of fractional shares, if any, which such holder has the right to receive in respect of the Certificate surrendered pursuant to the provisions of this Article II (after taking into account all shares of GreenPoint Common Stock then held by such holder), and the Certificate so surrendered shall forthwith be cancelled. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to holders of Certificates. (b) No dividends or other distributions declared after the Effective Time with respect to North Fork Common Stock and payable to the holders of record thereof shall be paid to the holder of any unsurrendered Certificate until the holder thereof shall surrender such Certificate in accordance with this Article II. After the surrender of a Certificate in accordance with this Article II, the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to shares of North Fork Common Stock represented by such Certificate. No holder of an unsurrendered Certificate shall be entitled, until the surrender of such Certificate, to vote the shares of North Fork Common Stock into which his GreenPoint Common Stock shall have been converted. (c) If any certificate representing shares of North Fork Common Stock is to be issued in a name other than that in which the Certificate surrendered in exchange therefor is registered, it shall be a condition of the issuance thereof that the Certificate so surrendered shall be properly endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer, and that the person requesting such exchange shall pay to the Exchange Agent in advance any transfer or other Taxes required by reason of the issuance of a certificate representing shares of North Fork Common Stock in any name other than that of the registered holder of the Certificate surrendered, or required for any other reason, or shall establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable. North Fork or the Exchange Agent shall be entitled to deduct and withhold from the Exchange Fund otherwise payable pursuant to this Agreement such amounts as North Fork or the Exchange Agent are required to deduct and withhold under the Code and the regulations promulgated thereunder, or any provision of state, local or foreign Tax law, with respect to the making of such payment. To the extent the amounts are so withheld by North Fork or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of shares of GreenPoint Common Stock in respect of whom such deduction and withholding was made by North Fork or the Exchange Agent. (d) From and after the Effective Time, there shall be no transfers on the stock transfer books of GreenPoint of the shares of GreenPoint Common Stock which were issued and outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates representing such shares are presented for transfer to the Exchange Agent or North Fork, they shall be cancelled and exchanged for certificates representing shares of North Fork Common Stock and any related payments as provided in this Article II. (e) Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional shares of North Fork Common Stock shall be issued upon the surrender for exchange of Certificates, no dividend or distribution with respect to North Fork Common Stock shall be payable on or with respect to any fractional share, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a shareholder of North Fork. In lieu of the issuance of any such fractional share, North Fork shall pay to each former stockholder of GreenPoint who otherwise would be entitled to receive a fractional share of North Fork Common Stock an amount in cash determined by multiplying (i) the average of the closing sale prices of North Fork Common Stock on the New York Stock Exchange (the "NYSE") as reported by The Wall Street Journal for the five trading days immediately preceding the date on which the Effective Time shall occur by (ii) the fraction of a share of North Fork Common Stock to which such holder would otherwise be entitled to receive pursuant to Section 1.4(a) hereof. (f) Any portion of the Exchange Fund that remains unclaimed by the stockholders of GreenPoint for six months after the Effective Time shall be paid to North Fork. Any stockholders of GreenPoint who have not theretofore complied with this Article II shall thereafter look only to North Fork for payment of their shares of North Fork Common Stock, cash in lieu of fractional shares and unpaid dividends and distributions on North Fork Common Stock deliverable in respect of each Certificate such stockholder holds as determined pursuant to this Agreement, in each case, without any interest thereon. Notwithstanding the foregoing, none of North Fork, GreenPoint, the Exchange Agent or any other person shall be liable to any 4 former holder of shares of GreenPoint Common Stock for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws. (g) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by North Fork, the posting by such person of a bond in such amount as North Fork may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate the shares of North Fork Common Stock and cash in lieu of fractional shares deliverable in respect thereof pursuant to this Agreement. 3.1. Disclosure Schedule. Prior to the execution and delivery of this Agreement, GreenPoint has delivered to North Fork a schedule (the "GreenPoint Disclosure Schedule") setting forth, among other things, items the disclosure of which is necessary or appropriate either in response to an express disclosure requirement contained in a provision hereof or as an exception to one or more of GreenPoint's representations or warranties contained in this Article III, or to one or more of GreenPoint's covenants contained in Section 5.1. 3.2. Standards. (a) No representation or warranty of GreenPoint contained in this Article III (other than the representations and warranties in Sections 3.3(a), 3.4(a), 3.5(a), 3.10(a), 3.19 and 3.22, which shall be true and correct in all material respects) shall be deemed untrue or incorrect, and GreenPoint shall not be deemed to have breached a representation or warranty, or failed to satisfy a related condition, as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or taken together with all other facts, circumstances or events inconsistent with any representation or warranty contained in Article III, has had or is reasonably likely to have a Material Adverse Effect (as defined below) on GreenPoint. 5 (b) As used in this Agreement, the term "Material Adverse Effect" means, with respect to North Fork or GreenPoint, as the case may be, an effect which (i) is materially adverse to the business, results of operations or financial condition of such party and its Subsidiaries taken as a whole, other than any such effect to the extent attributable to or resulting from (u) any change in banking or similar laws, rules or regulations of general applicability or interpretations thereof by courts or governmental authorities, (v) any change in generally accepted accounting principles, regulatory accounting principles or interpretations thereof, in each case which affects banks or their holding companies generally, (w) any change that arises out of this Agreement (including the announcement thereof) or in compliance with the terms and conditions hereof, (x) events, conditions or trends in economic, business or financial conditions affecting banks or their holding companies generally, (y) changes in national or international political or social conditions including the engagement by the United States in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon or within the United States, or any of its territories, possessions or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States or (z) any change in the stock price or trading volume of such party, or (ii) materially impairs the ability of such party and its Subsidiaries to consummate the transactions contemplated hereby. Except as set forth in the GreenPoint Disclosure Schedule, and subject to the standard set forth above, GreenPoint hereby represents and warrants to North Fork as set forth in Sections 3.3 through 3.27: 3.3. Corporate Organization. (a) GreenPoint is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. GreenPoint is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended (the "BHCA"). The certificate of incorporation and by-laws of GreenPoint, copies of which have previously been made available to North Fork, are true, complete and correct copies of such documents as in effect as of the date of this Agreement. (b) GreenPoint (i) has all requisite corporate power and authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted, and (ii) is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary. (c) GreenPoint Bank is a savings bank duly organized, validly existing and in good standing under the laws of the State of New York. Each of GreenPoint's Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, (ii) has all requisite corporate power and authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted and (iii) is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character or the location of the properties and assets owned or leased by it makes such licensing or qualification necessary. The articles of incorporation, by-laws and similar governing documents of each Subsidiary of GreenPoint, copies of which have previously been made available to North Fork, are true, complete and correct copies of such documents as in effect as of the date of this Agreement. The deposit accounts of GreenPoint Bank are insured by the Federal Deposit Insurance Corporation (the "FDIC") through the Bank Insurance Fund or the Savings Association Insurance Fund to the fullest extent permitted by law, and all premiums and assessments required to be paid in connection therewith have been paid when due. For purposes of this Agreement, the term "Subsidiary" means, with respect to any party, any corporation or other entity of which a majority of the capital stock or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time, directly or indirectly, owned by such party. 8 (d) The minute books of GreenPoint and each of its Subsidiaries contain true and correct records of all meetings and other corporate actions held or taken since December 31, 2000 of their respective stockholders and Boards of Directors (including committees of their respective Boards of Directors). 3.4. Capitalization. (a) As of the date of this Agreement, the authorized capital stock of GreenPoint consists of 220,000,000 shares of GreenPoint Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the "GreenPoint Preferred Stock"). As of the date of this Agreement, there are (i) 131,715,511 shares of GreenPoint Common Stock issued and outstanding, of which (A) 20,665,468.43 shares are held in the trust underlying GreenPoint's Employee Stock Ownership Plan (the "ESOP") and of such 20,665,468.43 shares a total of 15,095,643 are held in the ESOP's suspense account and (B) 138,187.5 shares are held in the trust underlying the RR Plan and of such 138,187.5 shares a total of 60,700 are subject to outstanding Plan Share Awards, (ii) no shares of GreenPoint Preferred Stock outstanding or reserved for issuance, (iii) no shares of GreenPoint Common Stock reserved for issuance upon exercise of outstanding stock options or otherwise except for 14,949,709 shares of GreenPoint Common Stock reserved for issuance pursuant to the GreenPoint Option Plans and described in Section 3.4(a) of the GreenPoint Disclosure Schedule, and (iv) 33,676,235 shares of GreenPoint Common Stock held by GreenPoint in its treasury or by GreenPoint's Subsidiaries. All of the issued and outstanding shares of GreenPoint Common Stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof. Except as referred to above or reflected in Section 3.4(a) of the GreenPoint Disclosure Schedule, GreenPoint does not have and is not bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for the purchase or issuance of any shares of GreenPoint Common Stock or GreenPoint Preferred Stock or any other equity security or Voting Debt (as defined below) of GreenPoint or any securities representing the right to purchase or otherwise receive any shares of GreenPoint Common Stock or any other equity security or Voting Debt of GreenPoint (including any rights plan or agreement). The names of the optionees, the date of grant of each GreenPoint Option, the number of shares subject to each such option, the expiration date of each such GreenPoint Option, and the price at which each such option may be exercised under the GreenPoint Option Plans are set forth in Section 3.4(a) of the GreenPoint Disclosure Schedule. (b) Section 3.4(b) of the GreenPoint Disclosure Schedule sets forth a true and correct list of all of the Subsidiaries of GreenPoint. Except as set forth in Section 3.4(b) of the GreenPoint Disclosure Schedule, GreenPoint owns, directly or indirectly, all of the issued and outstanding shares of the capital stock of each of its Subsidiaries, free and clear of all liens, charges, encumbrances and security interests of any kind or nature whatsoever (collectively, "Liens"), and all of such shares are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof. Except as set forth in Section 3.4(b) of the GreenPoint Disclosure Schedule, neither GreenPoint nor any of its Subsidiaries has (i) any equity investments other than investments in wholly owned Subsidiaries or (ii) any investments in real estate or real estate development projects, other than assets classified as "other real estate owned." No Subsidiary of GreenPoint has or is bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for the purchase or issuance of any shares of capital stock or any other equity security or Voting Debt of such Subsidiary or any securities representing the right to purchase or otherwise receive any shares of capital stock or any other equity security or Voting Debt of such Subsidiary. Assuming compliance by North Fork with Section 1.5 hereof, at the Effective Time, there will not be any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character by which GreenPoint or any of its Subsidiaries will be bound calling for the purchase or issuance of any shares of the capital stock of GreenPoint or any of its Subsidiaries. (c) No bonds, debentures, notes or other indebtedness having the right to vote on any matters on which stockholders may vote ("Voting Debt") of GreenPoint are issued or outstanding. 9 3.5. Authority; No Violation. (a) GreenPoint has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly approved by the Board of Directors of GreenPoint. The Board of Directors of GreenPoint has directed that this Agreement and the transactions contemplated hereby be submitted to GreenPoint's stockholders for approval at a meeting of such stockholders and, except for the approval and adoption of this Agreement by the affirmative vote of the holders of a majority of the outstanding shares of GreenPoint Common Stock, no other corporate proceedings on the part of GreenPoint are necessary to approve this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by GreenPoint, and (assuming due authorization, execution and delivery by North Fork) this Agreement constitutes a valid and binding obligation of GreenPoint, enforceable against GreenPoint in accordance with its terms, except as enforcement may be limited by general principles of equity whether applied in a court of law or a court of equity and by bankruptcy, insolvency and similar laws affecting creditors' rights and remedies generally. (b) Except as set forth in Section 3.5(b) of the GreenPoint Disclosure Schedule, neither the execution and delivery of this Agreement by GreenPoint, nor the consummation by GreenPoint of the transactions contemplated hereby, nor compliance by GreenPoint with any of the terms or provisions hereof, will (i) violate any provision of the certificate of incorporation or the by-laws of GreenPoint or the certificate of incorporation, by-laws or similar governing documents of any of its Subsidiaries, or (ii) assuming that the consents and approvals referred to in Section 3.6 hereof are duly obtained, (x) violate any statute, code, ordinance, rule, regulation, judgment, order, writ, decree or injunction applicable to GreenPoint or any of its Subsidiaries or any of their respective properties or assets, or (y) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of GreenPoint or any of its Subsidiaries under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, lease, contract, agreement or other instrument or obligation to which GreenPoint or any of its Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected. 3.6. Consents and Approvals. Except for (a) the filing of an application with the Board of Governors of the Federal Reserve System (the "Federal Reserve") under the BHCA and the approval of such application, (b) the filing of an application with the New York State Banking Department (the "New York Banking Department") and the approval of such applications, (c) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, (d) the filing with the Securities and Exchange Commission (the "SEC") of (i) the Joint Proxy Statement/Prospectus (as defined in Section 6.1 hereof) and (ii) such reports under Sections 13(a), 13(d), 13(g) and 16(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as may be required in connection with this Agreement and the transactions contemplated hereby and the obtaining from the SEC of such orders as may be required in connection therewith, (e) the approval of this Agreement by the requisite vote of the stockholders of GreenPoint and North Fork, (f) approval of the listing of North Fork Common Stock to be issued in the Merger on the NYSE, (g) such filings and approvals as are required to be made or obtained under the securities or "Blue Sky" laws of various states in connection with the issuance of the shares of North Fork Common Stock pursuant to this Agreement, (h) such filings, authorizations or approvals as may be set forth in Section 3.6 of the GreenPoint Disclosure Schedule, (i) such applications, filings, authorizations, approvals and orders as may be required under the laws of any state in respect of GreenPoint's mortgage business, and (j) such applications, filings, authorizations, approvals and orders as may be required to be made with, or obtained from, any Agency (as such term is defined in Section 3.24(e)), no consents or approvals of or filings or registrations with any court, 10 agency or commission or other governmental or regulatory authority, including any Regulatory Agency (as defined in Section 3.7(a) hereof) (each a "Governmental Entity") or with any third party are necessary in connection with the execution and delivery by GreenPoint of this Agreement or the consummation by GreenPoint of the Merger and the other transactions contemplated hereby. 3.7. Reports. (a) GreenPoint and each of its Subsidiaries have timely filed all reports, registrations and statements, together with any amendments required to be made with respect thereto, that they were required to file since December 31, 2000 with (i) the FDIC, (ii) any state banking commissions or any other state regulatory authority, (iii) any other self-regulatory organization, and (iv) any other federal or state authority regulating financial institutions (including mortgage banks), including the Federal Reserve and the Federal Home Loan Bank of New York (collectively, the "Regulatory Agencies"), and have paid all fees and assessments due and payable in connection therewith. Except for normal examinations conducted by a Regulatory Agency in the regular course of the business of GreenPoint and its Subsidiaries, and except as set forth in Section 3.7 of the GreenPoint Disclosure Schedule, no Regulatory Agency has initiated any proceeding or, to the knowledge of GreenPoint, investigation into the business or operations of GreenPoint or any of its Subsidiaries since December 31, 2000. There is no unresolved violation, criticism, or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of GreenPoint or any of its Subsidiaries. (b) GreenPoint has previously made available to North Fork a true, correct and complete copy of each (a) final registration statement, prospectus, report, schedule and definitive proxy statement filed since December 31, 2000 (collectively, the "GreenPoint Reports") by GreenPoint with the SEC pursuant to the Securities Act of 1933, as amended (the "Securities Act") or the Exchange Act and (b) communication mailed by GreenPoint to its stockholders since December 31, 2000, and no such registration statement, prospectus, report or proxy statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading. GreenPoint has timely filed all GreenPoint Reports and other documents required to be filed by it under the Securities Act and the Exchange Act, and, as of their respective dates (or, if amended or superceded by a filing prior to the date hereof, as of the date of such filing), all GreenPoint Reports complied with the published rules and regulations of the SEC, as applicable, with respect thereto. No executive officer of GreenPoint has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Sarbanes-Oxley Act of 2002 and no enforcement action has been initiated against GreenPoint by the SEC relating to disclosures contained in any GreenPoint Report. 3.8. Financial Statements. GreenPoint has previously made available to North Fork copies of (a) the consolidated statements of financial condition of GreenPoint and its Subsidiaries as of December 31 for the fiscal years 2001 and 2002, and the related consolidated statements of operations, of comprehensive income, of changes in stockholders' equity, and of cash flows for the fiscal years 2000 through 2002, inclusive, as reported in GreenPoint's Annual Report on Form 10-K for the fiscal year ended December 31, 2002 filed with the SEC under the Exchange Act, in each case accompanied by the audit report of PricewaterhouseCoopers LLP ("PWC"), independent public accountants with respect to GreenPoint, and (b) the unaudited consolidated statements of financial condition of GreenPoint and its Subsidiaries as of September 30, 2003 and the related unaudited consolidated statements of income, of comprehensive income, of changes in stockholders' equity and of cash flows for the nine-month periods ended September 30, 2002 and September 30, 2003, as reported in GreenPoint's Quarterly Report on Form 10-Q for the period ended September 30, 2003 filed with the SEC under the Exchange Act. The December 31, 2002 consolidated statement of financial condition of GreenPoint (including the related notes, where applicable) fairly presents in all material respects the consolidated financial position of GreenPoint and its Subsidiaries as of the date thereof, and the other financial statements referred to in this Section 3.8 (including the related notes, where applicable) fairly 11 present in all material respects, and the financial statements to be filed by GreenPoint with the SEC after the date of this Agreement will fairly present in all material respects (subject, in the case of the unaudited statements, to recurring audit adjustments normal in nature and amount), the results of the consolidated operations and consolidated financial position of GreenPoint and its Subsidiaries for the respective fiscal periods or as of the respective dates therein set forth; each of such statements (including the related notes, where applicable) complies, and the financial statements to be filed by GreenPoint with the SEC after the date of this Agreement will comply, with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto; and each of such statements (including the related notes, where applicable) has been, and the financial statements to be filed by GreenPoint with the SEC after the date of this Agreement will be, prepared in accordance with generally accepted accounting principles ("GAAP") consistently applied during the periods involved, except as indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q. The books and records of GreenPoint and its Subsidiaries have been, and are being, maintained in accordance with applicable legal and accounting requirements and reflect only actual transactions. PWC has not resigned or been dismissed as independent public accountants of GreenPoint as a result of or in connection with any disagreements with GreenPoint on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure. 3.9 Broker's Fees. Neither GreenPoint nor any Subsidiary of GreenPoint nor any of their respective officers or directors has employed any broker or finder or incurred any liability for any broker's fees, commissions or finder's fees in connection with any of the transactions contemplated by this Agreement, except that GreenPoint has engaged, and will pay a fee or commission to each of Lehman Brothers ("Lehman"), Keefe, Bruyette & Woods ("KBW") and JP Morgan Chase & Co. ("JP Morgan") in accordance with the terms of letter agreements between GreenPoint and each of Lehman, KBW and JP Morgan, a true, complete and correct copy of each of which has been previously delivered by GreenPoint to North Fork. 3.10. Absence of Certain Changes or Events. (a) Except (i) as set forth in Section 3.10(a) of the GreenPoint Disclosure Schedule or (ii) as disclosed in any GreenPoint Report filed with the SEC prior to the date of this Agreement, since September 30, 2003, there has been no change or development or combination of changes or developments which, individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect on GreenPoint. (b) Except as set forth in Section 3.10(b) of the GreenPoint Disclosure Schedule, since September 30, 2003, GreenPoint and its Subsidiaries have carried on their respective businesses only in the ordinary and usual course of business consistent with their past practices. (c) Except as set forth in Section 3.10(c) of the GreenPoint Disclosure Schedule, since September 30, 2003 through the date hereof, neither GreenPoint nor any of its Subsidiaries has (i) except in the ordinary course of business consistent with past practice, increased the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any officer or director from the amount thereof in effect as of September 30, 2003 (which amounts have been previously disclosed to North Fork), granted any severance or termination pay, entered into any contract to make or grant any severance or termination pay, or paid any bonus, (ii) declared, set aside or paid any dividend or other distribution (whether in cash, stock or property) with respect to any of GreenPoint's capital stock, other than regular quarterly cash dividends on GreenPoint Common Stock, (iii) effected or authorized any issuance, split, combination or reclassification of any of GreenPoint's capital stock or issued any other securities in respect of, in lieu of or in substitution for shares of GreenPoint's capital stock, except for issuances of GreenPoint Common Stock upon the exercise of GreenPoint Options, or the satisfaction of obligations under GreenPoint Stock Unit Plans, (iv) changed any accounting methods, principles or practices of GreenPoint or its Subsidiaries affecting its assets, liabilities or businesses, including any reserving, renewal or residual method, practice or policy, (v) made any Tax election or changed any Tax election, amended any Tax Returns (as defined in Section 3.12(b)) or entered into any 12 settlement or compromise of any income tax liability of GreenPoint or its Subsidiaries or entered into any closing agreement with respect to Taxes, or (vi) made any agreement or commitment (contingent or otherwise) to do any of the foregoing. 3.11. Legal Proceedings. (a) Except as set forth in Section 3.11(a) of the GreenPoint Disclosure Schedule, neither GreenPoint nor any of its Subsidiaries is a party to any, and there are no pending or, to GreenPoint's knowledge, threatened, legal, administrative, arbitral or other proceedings, claims, actions or governmental or regulatory investigations of any nature against GreenPoint or any of its Subsidiaries or challenging the validity or propriety of the transactions contemplated by this Agreement. (b) There is no injunction, order, judgment, decree, or regulatory restriction imposed upon GreenPoint, any of its Subsidiaries or the assets of GreenPoint or any of its Subsidiaries. 3.12. Taxes. (a) Except as set forth in Section 3.12(a) of the GreenPoint Disclosure Schedule, each of GreenPoint and its Subsidiaries has (i) duly and timely filed (including applicable extensions granted without penalty) all Tax Returns (as defined below) required to be filed by it, and such Tax Returns are true, correct and complete, (ii) timely paid in full all Taxes required to be paid by it and (iii) made adequate provision in the financial statements of GreenPoint (in accordance with GAAP) for all Taxes not yet due. Except as set forth in Section 3.12(a) of the GreenPoint Disclosure Schedule, no deficiencies for any Taxes have been proposed, asserted, assessed or, to the knowledge of GreenPoint, threatened against or with respect to GreenPoint or any of its Subsidiaries. Except as set forth in Section 3.12(a) of the GreenPoint Disclosure Schedule, (i) there are no Liens for Taxes upon the assets of either GreenPoint or its Subsidiaries except for statutory liens for current Taxes not yet due, (ii) neither GreenPoint nor any of its Subsidiaries has requested any extension of time within which to file any Tax Returns in respect of any fiscal year which have not since been filed and no request for waivers of the time to assess any Taxes are pending or outstanding, (iii) no federal, state, local or foreign audits or other administrative proceedings or court proceedings are presently pending with regard to any Taxes (other than federal or state income Taxes) of GreenPoint or any of its Subsidiaries, and neither GreenPoint nor any of its Subsidiaries has received a notice of any claims, audits or proceedings with respect to such Taxes, (iv) with respect to each taxable period of GreenPoint and its Subsidiaries, the federal and state income Tax Returns of GreenPoint and its Subsidiaries have been audited by the Internal Revenue Service (the "IRS") or appropriate state tax authorities or the time for assessing and collecting income Tax with respect to such taxable period has closed and such taxable period is not subject to review, (v) neither GreenPoint nor any of its Subsidiaries has filed or been included in a combined, consolidated or unitary income Tax Return other than one in which GreenPoint was the parent of the group filing such Tax Return, (vi) neither GreenPoint nor any of its Subsidiaries is a party to any agreement providing for the allocation, sharing, or indemnification of Taxes, (vii) neither GreenPoint nor any of its Subsidiaries is required to include in income any adjustment pursuant to Section 481(a) of the Code (or any similar or corresponding provision or requirement of state, local or foreign income Tax law), by reason of the voluntary change in accounting method (nor has any taxing authority proposed any such adjustment or change of accounting method), (viii) no closing agreements, private letter rulings, technical advance memoranda or similar agreement or ruling have been entered into or issued by any taxing authority with respect to GreenPoint or any of its Subsidiaries within five years of the date of this Agreement, and no such agreement or ruling has been applied for and is currently pending, (ix) neither GreenPoint nor any of its Subsidiaries has, since December 31, 2002, made any Tax election or change in Tax election, amended any Tax Returns or entered into any settlement or compromise of any income tax liability of GreenPoint or its Subsidiaries, (x) neither GreenPoint nor any of its Subsidiaries has granted in writing any power of attorney which is currently in force with respect to any Taxes or Tax Returns, (xi) neither GreenPoint nor any of its Subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock to which Section 355 of the 13 Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) applies and which occurred within two years of the date of this Agreement, and (xii) no claim has been made in writing in any jurisdiction where GreenPoint or any of its Subsidiaries does not file Tax Returns that any such entity is, or may be, subject to Tax by that jurisdiction. (b) For the purposes of this Agreement, "Tax" or "Taxes" shall mean all taxes, charges, levies, penalties or other assessments imposed by any United States federal, state, local or foreign taxing authority, including, but not limited to income, gross receipts, excise, property, ad valorem, value added, alternative minimum, stamp, occupation, use, service, license, intangible, net worth, sales, transfer, franchise, payroll, employment, withholding, social security or other taxes, including any interest, penalties or additions attributable thereto. For purposes of this Agreement, "Tax Return" shall mean any return, report, information return or other document (including any related or supporting information) with respect to Taxes, including but not limited to information returns and any documents with respect to or accompanying payments of estimated Taxes or requests for the extension of time in which to file any such return, report, information, return or other document. 14 3.13. Employee Benefit Plans. (a) Section 3.13(a) of the GreenPoint Disclosure Schedule sets forth a true and complete list of each deferred compensation, incentive compensation, stock purchase, stock option and other equity compensation plan, program, agreement or arrangement; each severance or termination pay, medical, surgical, hospitalization, life insurance and other "welfare" plan, fund or program (within the meaning of section 3(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")); each profit-sharing or stock bonus plan, fund or program; each "pension" plan, fund or program (within the meaning of section 3(2) of ERISA) (a "Pension Plan"); each employment, termination or severance plan, program, agreement or arrangement; and each other employee benefit plan, fund, program, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by GreenPoint or by any trade or business, whether or not incorporated (an "ERISA Affiliate"), that together with GreenPoint would be deemed a "single employer" within the meaning of section 4001(b) of ERISA, or to which GreenPoint or an ERISA Affiliate is party, whether written or oral, for the benefit of any employee or former employee of GreenPoint or any Subsidiary of GreenPoint (the "Plans"). Neither GreenPoint, any Subsidiary of GreenPoint nor any ERISA Affiliate has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Plan that would affect any employee or former employee of GreenPoint or any of its Subsidiaries. (b) GreenPoint has heretofore made available to North Fork true and complete copies of each of the Plans and all related documents, including but not limited to (i) the Form 5500 for such Plan (if applicable) for each of the two most recent plan years for which such forms are required to have been filed, (ii) the most recent determination letter from the IRS (if applicable) for such Plan, (iii) a copy of the most recent summary plan description required for such Plan under ERISA (if applicable) and (iv) a copy of the trust or other funding agreement for the Plan (as applicable) and the latest financial statements thereof. (c) Except as set forth in Section 3.13(c) of the GreenPoint Disclosure Schedule, (i) each of the Plans, other than "multiemployer plans" within the meaning of section 3(37) of ERISA (each, a "Multiemployer Plan"), has been operated and administered in accordance with its terms and applicable law, including but not limited to ERISA and the Code, (ii) each of the Plans that is a Pension Plan and that is intended to be "qualified" within the meaning of Section 401(a) of the Code, has received a favorable determination letter from the IRS covering all tax law changes with respect to which the applicable remedial amendment period under section 401(b) of the Code has not expired or has applied to the IRS for such favorable determination letter, and GreenPoint is not aware of any circumstances reasonably likely to result in the revocation or denial of any such favorable determination letter, (iii) with respect to each Pension Plan which is subject to Title IV of ERISA, the actuarially determined present value of accrued benefits under such Pension Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Pension Plan's actuary with respect to such Pension Plan, did not, as of its latest valuation date, exceed the then current value of the assets of such Pension Plan allocable to such accrued benefits, (iv) no Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees, directors or consultants of GreenPoint, its Subsidiaries or any ERISA Affiliate beyond their retirement or other termination of service, other than (w) coverage mandated by applicable law, (x) death benefits or retirement benefits under any Pension Plan, (y) deferred compensation benefits accrued as liabilities on the books of GreenPoint or its Subsidiaries to the extent required by GAAP or (z) benefits the full cost of which is borne by the current or former employee, director or consultant (or his beneficiary), (v) no liability under Title IV of ERISA has been incurred or is reasonably expected to be incurred by GreenPoint, its Subsidiaries or any ERISA Affiliate that has not been satisfied in full, and GreenPoint is not aware of any condition that presents a significant risk to GreenPoint, its Subsidiaries or an ERISA Affiliate of incurring a liability thereunder, (vi) no Plan is a Multiemployer Plan, (vii) all contributions required to be made, as of the date hereof, with respect to each Plan in respect of current or prior plan years have been made or accrued in accordance 15 with GAAP and section 412 of the Code, (viii) neither GreenPoint, nor any of its Subsidiaries nor to the knowledge of GreenPoint any ERISA Affiliate have engaged in a transaction, with respect to any Plan that is covered by ERISA, that assuming the taxable period of such transaction expired as of the date hereof, could reasonably be expected to subject GreenPoint or any of its Subsidiaries to either a civil penalty assessed pursuant to section 409 or 502(i) of ERISA or a tax imposed pursuant to section 4975 or 4976 of the Code, (ix) there are no pending, or, to the knowledge of GreenPoint, threatened or anticipated claims or proceedings (other than routine claims for benefits) by, on behalf of or against any of the Plans or any trusts related thereto, (x) the consummation of the transactions contemplated by this Agreement will not, either alone or in combination with another event, (1) entitle any current or former employee, officer or director of GreenPoint or any Subsidiary of GreenPoint to severance pay, termination pay or any other payment or benefit, (2) accelerate the time of payment or vesting or increase the amount or value of compensation or benefits due any such employee, officer or director or (3) result in payment of amounts under the Plans which would not be deductible for federal income tax purposes by virtue of section 280G or section 162(m) of the Code. 3.14. Labor Relations. Neither GreenPoint nor any of its Subsidiaries is a party to, or is bound by, any collective bargaining agreement, contract or other agreement or understanding with a labor union or labor organization, nor is GreenPoint or any of its Subsidiaries the subject of any proceeding asserting that GreenPoint or any such Subsidiary has committed an unfair labor practice or seeking to compel GreenPoint or such Subsidiary to bargain with any labor organization as to wages or conditions of employment, nor is there any strike involving GreenPoint or any of its Subsidiaries pending or, to the knowledge of GreenPoint, threatened, nor is GreenPoint aware of any activity involving its or any of its Subsidiaries' employees seeking to certify a collective bargaining unit or engaging in any other organizational activity. 3.15. GreenPoint Information. The information relating to GreenPoint and its Subsidiaries that is provided to North Fork by GreenPoint or any of its affiliates or representatives for inclusion in the Joint Proxy Statement/Prospectus and the Form S-4 (as such term is defined in Section 6.1(a) hereof), or in any other document filed with any other Governmental Entity in connection herewith, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading. The Joint Proxy Statement/Prospectus will comply with the provisions of the Exchange Act and the rules and regulations thereunder except that no representation or warranty is made by GreenPoint with respect to statements made or incorporated by reference therein based on information supplied by North Fork specifically for inclusion or incorporation by reference in the Joint Proxy Statement/Prospectus. 3.16. Compliance with Applicable Law. GreenPoint and each of its Subsidiaries: (a) is in compliance, in the conduct of its business, with all applicable federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders or decrees applicable thereto or to the employees conducting such businesses, including the Sarbanes-Oxley Act of 2002, the Equal Credit Opportunity Act, the Fair Housing Act, the Community Reinvestment Act, the Home Mortgage Disclosure Act, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, all other applicable fair lending laws or other laws relating to discrimination and the Bank Secrecy Act, and, as of the date hereof, GreenPoint, and each other depository Subsidiary of GreenPoint, has a Community Reinvestment Act rating of "satisfactory" or better; (b) has all permits, licenses, franchises, certificates, orders, and approvals of, and has made all filings, applications, and registrations with, Governmental Entities that are required in order to permit GreenPoint and each of its Subsidiaries to carry on its business as currently conducted; (c) has, since December 31, 2000, received no notification or communication from any Governmental Entity (i) asserting that GreenPoint or any of its Subsidiaries is not in compliance with 16 any statutes, regulations or ordinances, (ii) threatening to revoke any permit, license, franchise, certificate of authority or other governmental authorization, or (iii) threatening or contemplating revocation or limitation of, or which would have the effect of revoking or limiting, FDIC deposit insurance; and (d) is not a party to or subject to any order, decree, agreement, memorandum of understanding or similar arrangement with, or a commitment letter, supervisory letter or similar submission to, any Governmental Entity charged with the supervision or regulation of depository institutions or engaged in the insurance of deposits or the supervision or regulation of GreenPoint or any of its Subsidiaries and neither GreenPoint nor any of its Subsidiaries has been advised by any such Governmental Entity that such Governmental Entity is contemplating issuing or requesting (or is considering the appropriateness of issuing or requesting) any such order, decree, agreement, memorandum of understanding, commitment letter, supervisory letter or similar submission. 3.17. Certain Contracts. (a) Except as set forth in Section 3.17(a) of the GreenPoint Disclosure Schedule, as of the date hereof, neither GreenPoint nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) with respect to the employment of any directors, officers, employees or consultants, (ii) which, upon the consummation of the transactions contemplated by this Agreement, will (either alone or after notice or lapse of time or both) result in (x) any payment or benefits (whether of severance pay or otherwise) becoming due, or any increase in the amount of or acceleration or vesting of any rights to any payment or benefits, from North Fork, GreenPoint, or any of their respective Subsidiaries to any director, officer, employee or consultant thereof or (y) the invalidity, unenforceability or discontinuation of any such contract, arrangement, commitment or understanding, whether in whole or in part, (iii) which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement that has not been filed or incorporated by reference in the GreenPoint Reports filed prior to the date of this Agreement, (iv) which is not terminable without cause on 60 days' or less notice without penalty or payment in excess of $100,000 or involves the payment of more than $500,000 per annum, or (v) which materially restricts the conduct of any line of business by GreenPoint or any of its Subsidiaries. Each contract, arrangement, commitment or understanding of the type described in this Section 3.17(a), whether or not set forth in Section 3.17(a) of the GreenPoint Disclosure Schedule, is referred to herein as an "GreenPoint Contract." (b) Except as set forth in Section 3.17(b) of the GreenPoint Disclosure Schedule, (i) each GreenPoint Contract is valid and binding on GreenPoint or a Subsidiary of GreenPoint and in full force and effect (except to the extent that any GreenPoint Contract expires in accordance with its terms), (ii) GreenPoint and each of its Subsidiaries has performed all obligations required to be performed by it to date under each GreenPoint Contract, (iii) no event or condition exists which constitutes, or after notice or lapse of time or both would constitute, a default on the part of GreenPoint or any of its Subsidiaries under any GreenPoint Contract, and (iv) no other party to such GreenPoint Contract is, to the knowledge of GreenPoint, in default in any respect thereunder. Except as set forth in Section 3.17(b) of the GreenPoint Disclosure Schedule, no GreenPoint Contract will expire pursuant to its terms on or prior to the first anniversary of the date hereof. 3.18. Investment Securities. Section 3.18 of the GreenPoint Disclosure Schedule sets forth the book and market value as of September 30, 2003 of the investment securities, mortgage backed securities and securities held for sale of GreenPoint and its Subsidiaries. 17 3.19. Business Combination Provision; State Takeover Laws. The Board of Directors of GreenPoint has approved the transactions contemplated by this Agreement such that the provisions of Article Eighth of GreenPoint's certificate of incorporation will not, assuming the accuracy of the representations contained in Section 4.19 hereof, apply to this Agreement or any of the transactions contemplated hereby. No "moratorium," "control share," "fair price" or other antitakeover laws are applicable to the Merger or any of the other transactions contemplated by this Agreement. 3.20. Environmental Matters. Except as set forth in Section 3.20 of the GreenPoint Disclosure Schedule: (a) Each of GreenPoint and its Subsidiaries and, to the knowledge of GreenPoint, each of the Participation Facilities and the Loan Properties (each as defined below, for so long as they were Loan Properties or Participation Facilities) are and have been in compliance with all applicable federal, state and local laws including common law, regulations and ordinances and with all applicable decrees and orders, in each case relating to pollution or the discharge of, or exposure to Hazardous Materials (as defined below) in the environment or workplace ("Environmental Laws"); (b) There is no suit, claim, action or proceeding pending or, to the knowledge of GreenPoint, threatened, before any Governmental Entity or other forum in which GreenPoint, any of its Subsidiaries, and, to the knowledge of GreenPoint, any Participation Facility or any Loan Property, has been or, with respect to threatened proceedings, is reasonably likely to be, named as a defendant (i) for alleged noncompliance (including by any predecessor) with any Environmental Laws or (ii) relating to the release, threatened release or exposure of any Hazardous Material whether or not occurring at or on a site owned, leased or operated by GreenPoint or any of its Subsidiaries, any Participation Facility or any Loan Property; and (c) To the knowledge of GreenPoint, during the period of: (i) GreenPoint's or any of its Subsidiaries' ownership or operation of any of their respective current or former properties, (ii) GreenPoint's or any of its Subsidiaries' participation in the management of any Participation Facility, or (iii) GreenPoint's or any of its Subsidiaries' interest in a Loan Property, there has been no release of Hazardous Materials in, on, under or affecting any such property, which could reasonably be expected to require remediation pursuant to any Environmental Law. To the knowledge of GreenPoint, prior to the period of (x) GreenPoint's or any of its Subsidiaries' ownership or operation of any of their respective current or former properties, (y) GreenPoint's or any of its Subsidiaries' participation in the management of any Participation Facility, or (z) GreenPoint's or any of its Subsidiaries' interest in a Loan Property, there was no release or threatened release of Hazardous Materials in, on, under or affecting any such property, Participation Facility or Loan Property, which could reasonably be expected to require remediation pursuant to any Environmental Law. (d) The following definitions apply for purposes of this Agreement: (i) "Hazardous Materials" means any chemicals, pollutants, contaminants, wastes, toxic substances, petroleum or other regulated substances or materials; (ii) "Loan Property" means any property in which GreenPoint or any of its Subsidiaries holds a security interest and, where required by the context, said term means the owner or operator of such property; and (iii) "Participation Facility" means any facility in which GreenPoint or any of its Subsidiaries participates in the management and, where required by the context, said term means the owner or operator of such property. 3.21. Derivative Transactions. (a) All Derivative Transactions (as defined below) entered into by GreenPoint or any of its Subsidiaries or for the account of any of its customers were entered into in accordance with applicable laws, rules, regulations and regulatory policies of any Governmental Entity, and in accordance with the investment, securities, commodities, risk management and other policies, practices and procedures employed by GreenPoint and its Subsidiaries, and were entered into with counterparties believed at the time to be financially responsible and able to understand (either alone or in consultation with their advisers) and to bear the risks of such Derivative Transactions. GreenPoint 18 and its Subsidiaries have duly performed all of their obligations under the Derivative Transactions to the extent that such obligations to perform have accrued, and, to the knowledge of GreenPoint, there are no breaches, violations or defaults or allegations or assertions of such by any party thereunder. (b) Except as set forth in Section 3.21(b) of the GreenPoint Disclosure Schedule, as of September 30, 2003, no Derivative Transaction, were it to be a Loan held by GreenPoint or any of its Subsidiaries, would be classified as "Other Loans Specially Mentioned," "Special Mention," "Substandard," "Doubtful," "Loss," "Classified," "Criticized," "Credit Risk Assets," "Concerned Loans" or with words of similar import. The financial position of GreenPoint and its Subsidiaries on a consolidated basis under or with respect to each such Derivative Transaction has been reflected in the books and records of GreenPoint and such Subsidiaries in accordance with GAAP consistently applied, and as of the date hereof, no open exposure of GreenPoint or any of its Subsidiaries with respect to any such instrument (or with respect to multiple instruments with respect to any single counterparty) exceeds $500,000. (c) For purposes of this Agreement, the term "Derivative Transaction" means any swap transaction, option, warrant, forward purchase or sale transaction, futures transaction, cap transaction, floor transaction or collar transaction relating to one or more currencies, commodities, bonds, equity securities, loans, interest rates, catastrophe events, weather-related events, credit-related events or conditions or any indexes, or any other similar transaction (including any option with respect to any of these transactions) or combination of any of these transactions, including collateralized mortgage obligations or other similar instruments or any debt or equity instruments evidencing or embedding any such types of transactions, and any related credit support, collateral or other similar arrangements related to such transactions. 3.22. Opinion. Prior to the execution of this Agreement, GreenPoint has received opinions from Lehman and KBW to the effect that as of the date thereof and based upon and subject to the matters set forth therein, the Exchange Ratio is fair, from a financial point of view, to the holders of GreenPoint Common Stock and such opinion has not been amended or rescinded as of the date of this Agreement. 3.23. Approvals; Reorganization. As of the date of this Agreement, GreenPoint (a) knows of no reason why (i) all regulatory approvals from any Governmental Entity required for the consummation of the transactions contemplated by this Agreement should not be obtained on a timely basis or (ii) the opinion of tax counsel referred to in Section 7.3(c) should not be obtained on a timely basis and (b) has no reason to believe that the Merger will fail to qualify as a reorganization under Section 368(a) of the Code. 3.24. Loan Portfolio. (a) Except as set forth in Section 3.24(a) of the GreenPoint Disclosure Schedule, as of the date hereof, neither GreenPoint nor any of its Subsidiaries is a party to any written or oral (i) loan, loan agreement, note or borrowing arrangement (including leases, credit enhancements, commitments, guarantees and interest-bearing assets) (collectively, "Loans"), other than any Loan the unpaid principal balance of which does not exceed $500,000, under the terms of which the obligor was, as of December 31, 2003, over 90 days delinquent in payment of principal or interest or in default of any other provision, or (ii) Loan in excess of $100,000 with any director, executive officer or five percent or greater stockholder of GreenPoint or any of its Subsidiaries, or to the knowledge of GreenPoint, any person, corporation or enterprise controlling, controlled by or under common control with any of the foregoing. Section 3.24(a) of the GreenPoint Disclosure Schedule sets forth (x) all of the Loans in original principal amount in excess of $500,000 of GreenPoint or any of its Subsidiaries that as of December 31, 2003 were classified by GreenPoint or any regulatory examiner as "Other Loans Specially Mentioned," "Special Mention," "Substandard," "Doubtful," "Loss," "Classified," "Criticized," "Credit Risk Assets," "Concerned Loans," "Watch List" or words of similar import, together with the principal amount of and accrued and unpaid interest on each such Loan as of 19 December 31, 2003 and the identity of the borrower thereunder, (y) by category of Loan (i.e., commercial, consumer, etc.), all of the other Loans of GreenPoint and its Subsidiaries that as of December 31, 2003 were classified as such, together with the aggregate principal amount of and accrued and unpaid interest on such Loans by category as of December 31, 2003, and (z) each asset of GreenPoint that as of December 31, 2003 was classified as "Other Real Estate Owned" and the book value thereof. (b) Each Loan of GreenPoint or any of its Subsidiaries in original principal amount in excess of $500,000 (i) is evidenced by notes, agreements or other evidences of indebtedness that are true, genuine and what they purport to be, (ii) to the extent secured, has been secured by valid Liens which have been perfected and (iii) is the legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance and other laws of general applicability relating to or affecting creditors' rights and to general equity principles. (c) Each outstanding Loan (including Loans held for resale to investors) has been solicited and originated and is administered and serviced (to the extent administered and serviced by GreenPoint), and the relevant Loan files are being maintained in accordance with the relevant loan documents, GreenPoint's underwriting standards (and, in the case of Loans held for resale to investors, the underwriting standards, if any, of the applicable investors) and with all applicable requirements of federal, state and local laws, regulations and rules. (d) Except as set forth in Section 3.24(d) of the GreenPoint Disclosure Schedule, none of the agreements pursuant to which GreenPoint or any of its Subsidiaries has sold Loans or pools of Loans or participations in Loans or pools of Loans contains any obligation to repurchase such Loans or interests therein solely on account of a payment default by the obligor on any such Loan. (e) Each of GreenPoint and its Subsidiaries, as applicable, is approved by and is in good standing: (i) as a supervised mortgagee by the Department of Housing and Urban Development ("HUD") to originate and service Title I FHA mortgage loans; (ii) as a GNMA I and II Issuer by the Government National Mortgage Association ("Ginnie Mae"); (iii) by the Department of Veteran's Affairs ("VA") to originate and service VA loans; and (iv) as a seller/servicer by the Federal National Mortgage Association ("Fannie Mae") and the Federal Home Loan Mortgage Corporation ("Freddie Mac") to originate and service conventional residential mortgage Loans (each such entity being referred to herein as an "Agency" and, collectively, the "Agencies"). (f) Except as set forth in Section 3.24(f) of the GreenPoint Disclosure Schedule, none of GreenPoint or any of its Subsidiaries is now nor has it ever been since December 31, 2000 subject to any fine, suspension, settlement or other agreement or other administrative agreement or sanction by, or any reduction in any loan purchase commitment from any Agency or any federal or state agency relating to the origination, sale or servicing of mortgage or consumer Loans. Neither GreenPoint nor any of its Subsidiaries has received any notice, nor does it have any reason to believe, that any Agency proposes to limit or terminate the underwriting authority of GreenPoint or any of its Subsidiaries or to increase the guarantee fees payable to any such Agency. (g) Each of GreenPoint and its Subsidiaries is in compliance in all material respects with all applicable federal, state and local laws, rules and regulations, including the Truth-In-Lending Act and Regulation Z, the Equal Credit Opportunity Act and Regulation B, the Real Estate Settlement Procedures Act and Regulation X, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act and all Agency and other investor and mortgage insurance company requirements relating to the origination, sale and servicing of mortgage and consumer Loans. (h) To the knowledge of GreenPoint, each Loan included in a pool of Loans originated, acquired or serviced by GreenPoint or any of its Subsidiaries (a "Pool") meets all eligibility requirements 20 (including all applicable requirements for obtaining mortgage insurance certificates and loan guaranty certificates) for inclusion in such Pool. All such Pools have been finally certified or, if required, recertified in accordance with all applicable laws, rules and regulations, except where the time for certification or recertification has not yet expired. To the knowledge of GreenPoint, no Pools have been improperly certified, and no Loan has been bought out of a Pool without all required approvals of the applicable investors. 3.25. Property. Each of GreenPoint and its Subsidiaries has good title free and clear of all Liens to all of the properties and assets, real and personal, tangible or intangible, which are reflected on the consolidated statement of financial condition of GreenPoint as of December 31, 2002 or acquired after such date, except (a) Liens for taxes not yet due and payable, (b) pledges to secure deposits and other Liens incurred in the ordinary course of business, (c) mechanics', materialmen's, workmen's, repairmen's, warehousemen's, carrier's and other similar Liens arising in the ordinary course of business, or (d) Liens that do not interfere in any material respect with the current use of such property or asset. All leases pursuant to which GreenPoint or any Subsidiary of GreenPoint, as lessee, leases real or personal property are valid and enforceable against GreenPoint in accordance with their respective terms and neither GreenPoint nor any of its Subsidiaries nor, to the knowledge of GreenPoint, any other party thereto is in default thereunder. Section 3.25 of the GreenPoint Disclosure Schedule sets forth a true and correct list of all real property owned and leased by GreenPoint and its Subsidiaries as of the date hereof. 3.26. Intellectual Property. (a) To the knowledge of GreenPoint, GreenPoint and its Subsidiaries own or have a valid license to use all GreenPoint Intellectual Property (as defined below), free and clear of all Liens, royalty or other payment obligations (except for royalties or payments with respect to off-the-shelf Software at standard commercial rates). To the knowledge of GreenPoint, GreenPoint Intellectual Property constitutes all of the Intellectual Property necessary to carry on the business of GreenPoint and its Subsidiaries as currently conducted. GreenPoint Intellectual Property owned by GreenPoint or any of its Subsidiaries, and to the knowledge of GreenPoint, all other GreenPoint Intellectual Property, is valid and has not been cancelled, forfeited, expired or abandoned, and neither GreenPoint nor any of its Subsidiaries has received notice challenging the validity or enforceability of GreenPoint Intellectual Property. To the knowledge of GreenPoint, the conduct of the business of GreenPoint and its Subsidiaries does not violate, misappropriate or infringe upon the Intellectual Property rights of any third party. Except as set forth in Section 3.26(a) of the GreenPoint Disclosure Schedule, the consummation of the Merger will not result in the loss or impairment of the right of GreenPoint or any of its Subsidiaries to own or use any of GreenPoint Intellectual Property, and North Fork will have substantially the same rights to own or use GreenPoint Intellectual Property following the consummation of the Merger as GreenPoint and its Subsidiaries had prior to the consummation of the Merger. Section 3.26(a) of the GreenPoint disclosure Schedule sets forth a true and correct list of all GreenPoint Intellectual Property. (b) For purposes of this Agreement, the term "Intellectual Property" means (i) trademarks, service marks, trade names, Internet domain names, designs, logos, slogans, and general intangibles of like nature, together with all goodwill, registrations and applications related to the foregoing; (ii) patents and industrial designs (including any continuations, divisionals, continuations-in-part, renewals, reissues, and applications for any of the foregoing); (iii) copyrights (including any registrations and applications for any of the foregoing); (iv) computer programs, whether in source code or object code form (including any and all software implementation of algorithms, models and methodologies), databases and compilations (including any and all data and collections of data), and all documentation (including user manuals and training materials) related to the foregoing (collectively, "Software"); and (v) technology, trade secrets and other confidential information, know-how, proprietary processes, formulae, algorithms, models, and methodologies. For purposes of this 21 Agreement, the term "GreenPoint Intellectual Prop | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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