EXHIBIT 1(d)
New York Community Bancorp, Inc.
New York Community Capital Trust V
4,800,000 Units/1/
Bifurcated Option Note Unit Securities (BONUSES)(SM)
Underwriting Agreement
New York, New York
October 28, 2002
Salomon Smith Barney Inc.
Lehman Brothers Inc.
Bear, Stearns & Co. Inc.
Keefe, Bruyette & Woods, Inc
Sandler O'Neill & Partners, L.P.
As Representatives of the Underwriters
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
New York Community Capital Trust V, a Delaware statutory trust (the
"Trust"), and New York Community Bancorp, Inc., a Delaware corporation (the
"Company"), propose to sell to the several underwriters named in Schedule I
hereto (the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, 4,800,000 Bifurcated Option Note Unit Securities (the
"Underwritten Units") pursuant to a Unit Agreement to be dated as of November 4,
2002 (the "Unit Agreement") among the Trust, the Company, Wilmington Trust
Company, as unit agent (in such capacity, the "Unit Agent"), Wilmington Trust
Company, as warrant agent (in such capacity, the "Warrant Agent"), and
Wilmington Trust Company, as property trustee (in such capacity, the "Property
Trustee"). The Company and the Trust also propose to grant an option to purchase
up to 700,000 Units to cover over-allotments (the "Option Units;" the Option
Units, together with the Underwritten Units, being hereinafter called the
"Units").
Each Unit will consist of a preferred security, having a liquidation
preference of $50.00 per security, issued by the Trust (each, a "Preferred
Security") and a warrant (each, a "Warrant") issued by the Company, to purchase
at any time prior to the close of business on May 7, 2051, 1.4036 shares
(subject to antidilution adjustments) of common stock of the Company ("Common
Stock"). Each Preferred Security will represent an undivided beneficial
ownership interest in the assets of the Trust, which assets will consist solely
of subordinated debentures issued by the Company (the
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/1/ Plus an option to purchase from New York Community Capital Trust V and New
York Community Bancorp, Inc., up to 700,000 additional Units to cover
over-allotments.
"Debentures"). Certain payments on the Preferred Securities will be guaranteed
(the "Guarantee") by the Company pursuant to the Guarantee Agreement (the
"Guarantee Agreement") to be entered into between the Company and Wilmington
Trust Company, as guarantee trustee (in such capacity, the "Guarantee Trustee").
The Trust was formed on April 18, 2002 pursuant to a declaration of
trust (the "Original Trust Agreement") executed by the Company, as sponsor,
Wilmington Trust Company, as Delaware trustee (in such capacity, the "Delaware
Trustee"), and Joseph R. Ficalora, Robert Wann and Thomas R. Cangemi as the
initial administrative trustees (collectively, the "Administrative Trustees"),
and a certificate of trust of the Trust (the "Trust Certificate") was filed with
the Secretary of State of the State of Delaware. The Trust will be governed by
the Amended and Restated Declaration of Trust to be dated as of November 4, 2002
(the "Amended and Restated Trust Agreement") between the Company, as sponsor,
the Property Trustee, the Delaware Trustee and the Administrative Trustees.
The Trust will use the proceeds from the sale of the Preferred
Securities to purchase $240,000,000 aggregate principal amount of Debentures to
be issued pursuant to an indenture, to be dated as of November 4, 2002 (the
"Original Indenture"), as supplemented by a First Supplemental Indenture to be
dated as of November 4, 2002 (the "Supplemental Indenture;" together with the
Original Indenture, the "Indenture") in each case, between the Company and
Wilmington Trust Company, as indenture trustee (in such capacity, the "Indenture
Trustee"). The Trust will, if and to the extent it receives the proceeds of a
payment on the Debentures, distribute to the holders of the Preferred Securities
all payments so received.
The Company will issue the warrants pursuant to a Warrant Agreement to
be dated as of November 4, 2002 (the "Warrant Agreement") between the Company
and the Warrant Agent.
The Unit Agreement, the Amended and Restated Trust Agreement, the
Original Indenture, the Supplemental Indenture, the Warrant Agreement and the
Guarantee Agreement are referred to herein collectively as the "Operative
Documents." The Company and the Trust are referred to herein collectively as the
"NYCB Entities." The Units, the Warrants, the Guarantee and the Preferred
Securities are referred to herein collectively as the "Unit Securities." When
the term "NYCB Entities" is used in this Agreement to include the Trust, it is
understood that the execution and delivery by the parties to the Amended and
Restated Trust Agreement is a condition precedent to the obligations of the
Trust under this Agreement.
To the extent there are no additional Underwriters listed on Schedule
I other than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. Any reference herein to the
Registration Statement, a Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the
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issue date of such Preliminary Prospectus or the Prospectus, as the case may be;
and any reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement,
or the issue date of any Preliminary Prospectus or the Prospectus, as the case
may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 18 hereof.
1. Representations, Warranties and Agreements of the NYCB Entities.
Each of the NYCB entities, jointly and severally, represents, warrants and
agrees that:
(a) The Company has prepared and filed with the Commission (i) a
registration statement on Form S-3 (File No. 333-86682), including a
prospectus, relating to, among other securities, the Units and the
offering thereof from time to time in accordance with the requirements
of the Act, and a registration; and (ii) a registration statement on
Form S-3 (File No. 333-100767) pursuant to Rule 462(b) of the Act.
Such registration statements have been declared effective by the
Commission. Copies of such registration statements and any amendments
and supplements thereto, have been delivered to you. The Commission
has not issued any order preventing or suspending the use of any
Prospectus.
(b) The Company and this transaction satisfy the requirements for
use of Form S-3 under the Act.
(c) The Registration Statement complies in all material respects,
and the Prospectus and any further amendments to the Registration
Statement or supplements to the Prospectus, when they become effective
or are filed with the Commission, as the case may be, will comply in
all material respects with the requirements of the Act and do not and
will not, as of the applicable effective date (as to the Registration
Statement and any amendment thereto) and as of the applicable filing
date and any Closing Date (as to the Prospectus and any supplement
thereto) contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in light
of the circumstances under which they were made) not misleading, and
the documents incorporated by reference in the Prospectus complied in
all material respects as of their respective filing dates with the
requirements of the Exchange Act; provided that no representation or
warranty is made as to (i) information contained or incorporated in or
omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter specifically for inclusion
therein and (ii) those parts of the Registration Statement
constituting the Statements of Eligibility and Qualifications of
Wilmington Trust Company under the Trust Indenture Act of 1939, as
amended, and
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the rules and regulations thereunder (collectively, the "Trust
Indenture Act").
(d) The Indenture and the Amended and Restated Trust Agreement
are qualified under the Trust Indenture Act.
(e) The Company and each of its subsidiaries (as defined in
Section 15 hereof) have been duly organized and are validly existing
as corporations or limited liability companies, as the case may be, in
good standing under the laws of their respective jurisdictions of
organization, are duly qualified to do business and are in good
standing as foreign corporations or limited liability companies in
each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such
qualification, except where the failure to be so qualified or in good
standing would not have a material adverse effect on the general
affairs, management, consolidated financial position, stockholders'
equity, results of operations, business or prospects of the Company
and its subsidiaries, taken as a whole (a "Material Adverse Effect"),
and have all power and authority necessary to own or hold their
respective properties and to conduct their respective businesses as
described in the Prospectus, except as would not have a Material
Adverse Effect; none of the subsidiaries of the Company other than New
York Community Bank (the "Bank"), is a "significant subsidiary," as
such term is defined in Rule 405 of the Act; and the entities listed
on Schedule II hereto (each a "Other Subsidiary") are the only other
subsidiaries of the Company, none of which is material to the business
and operations of the Company.
(f) The Trust has been duly created and is validly existing as a
statutory trust in good standing under the Delaware Statutory Trust
Act of the State of Delaware, 12 Del. C. (S) 3801 et seq (the
"Delaware Statutory Trust Act") with the trust power and authority to
own property and conduct its business as described in the Prospectus,
and has conducted and will conduct no business other than the
transactions described in the Prospectus.
(g) The Company has an authorized capitalization as set forth in
the Prospectus under the caption "Description of Common Stock," and
all of the outstanding shares of capital stock of the Company are, and
any shares of capital stock issuable upon exercise, purchase or
exchange, all outstanding options, warrants and other rights to
purchase or exchange any securities for shares of the Company's
capital stock will be, duly authorized, validly issued, fully paid and
non-assessable and such capital stock, options, warrants or other
rights conform in all material respects to the description thereof
contained or incorporated by reference in the Prospectus; and all of
the issued shares of capital stock of each subsidiary of the Company
have been duly authorized and validly issued and are fully
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paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of all security interests, liens,
encumbrances, equities or claims.
(h) The shares of Common Stock issuable upon exercise of the
Warrants (the "Exercise Shares") have been duly authorized and
reserved for issuance upon exercise of the Warrants; there are no
preemptive or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any of the Exercise Shares
pursuant to the Company's certificate of incorporation or by-laws or
any agreement or other instrument; the Exercise Shares conform in all
material respects to the description thereof in the Prospectus; and
all Exercise Shares, when issued and delivered upon such exercise in
accordance with the terms of the Warrant Agreement and, assuming
payment for such Exercise Shares in the manner contemplated by the
Warrant Agreement and Unit Agreement, will be validly issued, fully
paid and non-assessable.
(i) The Units have been duly authorized (or will have been so
authorized prior to each issuance of Units) and, when issued and
delivered against payment therefor in accordance with this Agreement,
the Unit Agreement, the Warrant Agreement, the Amended and Restated
Trust Agreement and the Indenture (collectively, the "Unit
Documents"), will be valid and binding obligations of the NYCB
Entities enforceable against the NYCB Entities and entitled to the
benefits of the Unit Documents, except to the extent the enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, and general principles of
equity (whether enforcement is sought in equity or at law); and the
Units and the Unit Agreement conform or will conform at the time of
their issuance or execution, as the case may be, in all material
respects to all statements relating thereto contained in the
Prospectus.
(j) The Warrants have been duly authorized for issuance and sale
pursuant to this Agreement (or will have been so authorized prior to
each issuance of Units) and, when issued and delivered pursuant to the
provisions of this Agreement, and the Warrant Agreement against
payment of the consideration thereof in accordance with this
Agreement, the Warrants will be valid and binding obligations of the
Company enforceable against the Company and entitled to the benefits
of the Warrant Agreement, except to the extent the enforcement thereof
may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, and general principles of
equity (whether enforcement is sought in equity or at law); and the
Warrants and the Warrant Agreement conform or will conform at the time
of their issuance or execution, as the case may
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be, in all material respects to all statements relating thereto
contained in the Prospectus.
(k) The Preferred Securities have been duly authorized for
issuance and sale pursuant to this Agreement (or will have been so
authorized prior to each issuance of Units) and, when issued,
authenticated and delivered pursuant to the provisions of this
Agreement and the Amended and Restated Trust Agreement against payment
of the consideration thereof in accordance with this Agreement, the
Preferred Securities will be valid and binding obligations of the
Trust enforceable against the Trust and entitled to the benefits of
the Amended and Restated Trust Agreement, except to the extent the
enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, and general
principles of equity (whether enforcement is sought in equity or at
law); and the Preferred Securities and the Amended and Restated Trust
Agreement conform or will conform at the time of their issuance or
execution, as the case may be, in all material respects to all
statements relating thereto contained in the Prospectus.
(l) The Debentures have been duly authorized for issuance and
sale pursuant to this Agreement (or will have been so authorized prior
to each issuance of Units) and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement, and the
Indenture against payment of the consideration thereof in accordance
with this Agreement, the Debentures will be valid and binding
obligations of the Company enforceable against the Company and
entitled to the benefits of the Indenture, except to the extent the
enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, and general
principles of equity (whether enforcement is sought in equity or at
law); and the Debentures and the Indenture conform or will conform at
the time of their issuance or execution, as the case may be, in all
material respects to all statements relating thereto contained in the
Prospectus.
(m) The Guarantee has been duly authorized for issuance pursuant
to this Agreement (or will have been so authorized prior to each
issuance of Units) and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and the Guarantee
Agreement, the Guarantee will be a valid and binding obligation of the
Company enforceable against the Company and entitled to the benefits
of the Indenture, except to the extent the enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws relating to or
affecting creditors rights generally, and general principles of equity
(whether enforcement is sought in equity or at law); and the Guarantee
and the Guarantee Agreement conform or
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will conform at the time of their issuance or execution, as the case
may be, in all material respects to all statements relating thereto
contained in the Prospectus.
(n) Each Operative Document to which a NYCB Entity is a party has
been duly authorized (or will have been so authorized prior to each
issuance of Units) by such NYCB Entity and (assuming due
authorization, execution and delivery thereof by the parties thereto
other than the NYCB Entities) when executed and delivered by such NYCB
Entity will constitute a valid and binding agreement of such NYCB
Entity enforceable against such NYCB Entity in accordance with its
terms, except to the extent enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws now or hereafter in effect relating to or
affecting creditors' rights generally and general principles of equity
(whether enforcement is sought in equity or at law), and will conform
in all material respects to the description thereof contained in the
Prospectus. Each of the Administrative Trustees is an officer of the
Company and has been duly authorized by the Company to serve in such
capacity and to execute and deliver the Original Trust Agreement.
(o) This Agreement has been duly authorized, executed and
delivered by the Company.
(p) The execution, delivery and performance by each NYCB Entity,
as applicable, of this Agreement and the Operative Documents to which
such NYCB Entity is or will be a party and the consummation of the
transactions contemplated hereby will not (1) conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, (2) result in
any violation of the provisions of the charter or by-laws of the
Company or any of its subsidiaries, or (3) result in a violation of
any statute or any order, rule or regulation of any court, regulatory
authority or governmental agency or body (each a "Governmental
Entity") having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets; and except for the
registration of the Unit Securities and the Exercise Shares under the
Act and such consents, approvals, authorization, registrations or
qualifications as may be required under the Exchange Act and
applicable state or foreign securities laws in connection with the
purchase and distribution of the Units by the Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such Governmental Entity is required for the
execution, delivery or performance of this Agreement by it and the
consummation by it of the transactions contemplated hereby and
thereby.
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(q) The Trust is not a party to or bound by any agreement or
instrument other than this Agreement and the Operative Documents to
which it is or will be a party, and the agreements and instruments
contemplated by the Amended and Restated Trust Agreement and described
in the Prospectus; the Trust has no liabilities or obligations other
than those arising out of the transactions contemplated by this
Agreement and the agreements and instruments contemplated by the
Original Trust Agreement and described in the Prospectus; and the
Trust is not a party to or subject to any action, suit or proceeding
of any nature. The execution, delivery and performance of this
Agreement and the Operative Documents to which it is or will be a
party, and the consummation of the transactions contemplated herein
and therein will not violate or conflict with any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Trust or any of its properties or assets,
nor will such actions result in any violation of the Original Trust
Agreement or the Trust Certificate of the Trust; and except for the
registration of the Unit Securities and the Exercise Shares under the
Act and such consents, approvals, authorization, registrations or
qualifications as may be required under the Exchange Act and
applicable state or foreign securities laws in connection with the
purchase and distribution of the Units by the Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement
and the other Operative Documents to which the Trust is or will be a
party or the consummation of the transactions contemplated herein and
therein, including the issuance of the Units by the Company and the
Trust.
(r) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require
the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(s) The Company has not and will not have as of any Closing Date
sold or issued any shares of Common Stock, other equity securities or
debt securities during the six-month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A under, or
Regulations D or S of, the Act, other than securities issued pursuant
to employee benefit plans, qualified stock options plans or other
employee compensation plans or pursuant to outstanding options, rights
or warrants, and other than as disclosed in the Prospectus.
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(t) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since such
date, there has not been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations, business or
prospects of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus.
(u) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly
the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved except as noted therein.
(v) KPMG LLP, who have certified certain financial statements of
the Company, whose report is incorporated by reference in the
Registration Statement and who have delivered the initial letter
referred to in Section 6(g) hereof, are independent public accountants
as required by the Act and Rule 2-01 of Regulation S-X under the Act.
(w) The Company and each of its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and all assets held
under lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases, with such exceptions as are
not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its
subsidiaries.
(x) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the value
of their respective properties and as is customary for companies
engaged in similar businesses in similar industries.
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(y) The Company and each of its subsidiaries own, possess or can
acquire on reasonable terms, adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights and
licenses necessary for the conduct of their respective businesses and
have no reason to believe that the conduct of their respective
businesses will conflict with, and have not received any notice of any
claim of conflict with, any such rights of others.
(z) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which
any property or assets of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of
its subsidiaries, could reasonably be expected to have a Material
Adverse Effect; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(aa) There are no contracts or other documents which are required
by the Act to be described in the Prospectus or filed as exhibits to
the Registration Statement by the Act or which are required by the
Exchange Act to be described in or filed as exhibits to any document
incorporated by reference in the Prospectus which have not been
described in the Prospectus or described in or filed as exhibits to
documents so incorporated by reference.
(bb) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other hand,
which is required by the Act to be described in the Prospectus and
which is not so described.
(cc) No labor disturbance by the employees of the Company exists
or, to the knowledge of the Company, is imminent which could be
expected to have a Material Adverse Effect.
(dd) The Company has filed all federal, state and local income
and franchise tax returns required to be filed through the date hereof
and has paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Company or any of its subsidiaries which
has had (nor does the Company have any knowledge of any tax deficiency
which, if determined adversely to the Company or any of its
subsidiaries, could have) a Material Adverse Effect.
(ee) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed or referred to in the Prospectus, the Company has not (i)
issued or granted any securities, (ii) incurred any liability or
obligation, direct or
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contingent, other than non-material liabilities and obligations
incurred in the ordinary course of business, (iii) entered into any
transaction not in the ordinary course of business or (iv) declared or
paid any dividend on its capital stock.
(ff) Each of the Company and each of its subsidiaries (i) makes
and keeps accurate books and records and (ii) maintains internal
accounting controls which provide reasonable assurance that (A)
transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain accountability
for its assets, (C) access to its assets is permitted only in
accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(gg) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws or (ii) is in default in any
material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it is
bound or to which any of its properties or assets is subject.
(hh) Neither the Trust, the Company nor any of its subsidiaries
is, or will be after the offering and application of the proceeds
therefrom, an "investment company" within the meaning of such term
under the Investment Company Act of 1940 and the rules and regulations
of the Commission thereunder.
(ii) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company would have any liability;
the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to the termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of
the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "Code"); and
each "pension plan" for which the Company would have any liability
that is intended to be qualified under Section 401(a) of the Code is
so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which would cause the loss of
such qualification.
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(jj) The Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended, and each of
the Company and each of its subsidiaries (i) is in compliance, in all
material respects, 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 Equal
Credit Opportunity Act, the Fair Housing Act, the Community
Reinvestment Act, the Home Mortgage Disclosure Act, all other
applicable fair lending laws or other laws relating to discrimination
and the Bank Secrecy Act, and, as of the date hereof, each of its
subsidiaries that is an insured depository institution has a Community
Reinvestment Act rating of "satisfactory" or better; (ii) has all
permits, licenses, franchises, certificates of authority, orders, and
approvals of, and has made all filings, applications, and
registrations with, all Governmental Entities that are required in
order to permit the Company or such subsidiary to carry on its
business as currently conducted, except for those the failure of which
to possess would not have a Material Adverse Effect; (iii) has not
received any communication from any Governmental Entity (including the
Federal Reserve Board and any other bank, insurance or securities
regulatory authority) (A) asserting that the Company or any of its
subsidiaries is not in material compliance with any statutes,
regulations or ordinances, (B) threatening to revoke any permit,
license, franchise, certificate of authority or other governmental
authorization, or (C) threatening or contemplating revocation or
limitation of, or which would have the effect of revoking or limiting,
Federal Deposit Insurance Corporation ("FDIC") deposit insurance; and
(iv) 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
(including the FDIC) or the supervision or regulation of it or any of
its subsidiaries and neither it 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.
(kk) The Bank is duly organized and is validly existing as a
stock savings bank under the laws of the State of New York; the Bank
is a member in good-standing of the Federal Home Loan Bank of New
York, and the deposit accounts of the Bank are insured up to the
applicable limits by the FDIC.
(ll) There are no contracts, agreements or understandings between
the Company and any person that would give rise to a valid claim
against the Company or any Underwriter for a brokerage commission,
finder's fee
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or other like payment in connection with the offering of the Units,
other than as contemplated by this Agreement.
(mm) The statistical and market related data contained in the
Prospectus and Registration Statement are based on or derived from
sources which the Company believes are reliable and accurate.
(nn) The Company and the Bank have taken all actions necessary to
comply in all material respects with the Sarbanes-Oxley Act of 2002
and the rules and regulations promulgated thereunder as well as the
corporate governance rules that are in effect and that have been
adopted by any securities exchange or market on which the Common Stock
is traded.
(oo) The Company and the Bank currently maintain insurance
considered by each of them to be reasonable for their respective
operations and their known liabilities contingent and otherwise.
Neither the Company nor the Bank has received notice from any
insurance carrier that such insurance will be canceled or that
coverage thereunder will be reduced or eliminated. There are presently
no material claims pending under such policies of insurance and no
notices have been given by the Company or the Bank under such
policies. All such insurance is valid and enforceable and in full
force and effect.
(pp) The Company is subject to Section 13 or 15(d) of the
Exchange Act and files reports with the Commission on the Electronic
Data Gathering, Analysis and Retrieval (EDGAR) system.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, each of the
NYCB Entities agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the NYCB Entities, at a purchase
price of $48.75 per unit, the amount of the Underwritten Units set forth
opposite such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, each of the NYCB Entities
hereby grants an option to the several Underwriters to purchase, severally and
not jointly, up to 700,000 Option Units at the same purchase price per share as
the Underwriters shall pay for the Underwritten Units. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten Units by
the Underwriters. Said option may be exercised in whole or in part at any time
(but not more than once) on or before the 30th day after the date of the
Prospectus upon written or telegraphic notice by the Representatives to the
Company setting forth the number of the Option Units as to which the several
Underwriters are exercising the option and the settlement date. The number of
the Option Units to be purchased by each Underwriter shall be the same
percentage of the total number of the Option Units to be purchased by the
several Underwriters as such
13
Underwriter is purchasing of the Underwritten Units, subject to such adjustments
as you in your absolute discretion shall make to eliminate any fractional
shares.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Units and the Option Units (if the option provided for in Section
2(b) hereof shall have been exercised on or before the third Business Day prior
to the Closing Date) shall be made at 10:00 AM, New York City time, on November
4, 2002, or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Units being herein called the "Closing Date"). Delivery of the Units
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Underwritten Units and the Option Units shall be
made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
Option Units (at the expense of the Company) to the Representatives, at 388
Greenwich Street, New York, New York, on the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. If settlement for the
Option Units occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Units, and the obligation
of the Underwriters to purchase the Option Units shall be conditioned upon
receipt of, supplemental opinions, certificates and letters confirming as of
such date the opinions, certificates and letters delivered on the Closing Date
pursuant to Section 6 hereof.
4. Offering of Units. It is understood that the several Underwriters
propose to offer the Units for sale to the public as set forth in the
Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the Units, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus or any Rule 462(b) Registration Statement
unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the
Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
14
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives
(1) when the Prospectus, and any supplement thereto, shall have been
filed (if required) with the Commission pursuant to Rule 424(b) or
when any Rule 462(b) Registration Statement shall have been filed with
the Commission, (2) when, prior to termination of the offering of the
Units, any amendment to the Registration Statement shall have been
filed or become effective, (3) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Prospectus
or for any additional information, (4) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (5) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Units for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Units is
required to be delivered under the Act, any event occurs as a result
of which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Prospectus to comply with the Act or the Exchange Act, the Company
promptly will (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence
of paragraph (a) of this Section 5, an amendment or supplement which
will correct such statement or omission or effect such compliance and
(3) supply any supplemented Prospectus to you in such quantities as
you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of each Preliminary
Prospectus and the
15
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Units for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Units and will pay any fee of the National Association of
Securities Dealers, Inc., in connection with its review of the
offering; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale
of the Units, in any jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of
Salomon Smith Barney Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due
to cash settlement or otherwise) by the Company or any affiliate of
the Company or any person in privity with the Company or any affiliate
of the Company) directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Exchange Act, any Units, shares of
Common Stock or any securities convertible into, or exercisable, or
exchangeable for shares of Common Stock, the Preferred Securities, any
securities substantially similar to the Preferred Securities or any
guarantee of such securities; or publicly announce an intention to
effect any such transaction, for a period of 90 days after the date of
the Underwriting Agreement; provided, however, that the Company may
issue and sell Common Stock pursuant to any employee stock option
plan, stock ownership plan or dividend reinvestment plan of the
Company in effect at the Execution Time and the Company may issue
Common Stock issuable upon the conversion of securities or the
exercise of warrants outstanding at the Execution Time or the
Warrants.
(g) The Company shall use its best efforts to have the Units
admitted and authorized for quotation on the Nasdaq National Market,
and satisfactory evidence of such admission and authorization for
quotation shall be provided to the Representatives, if obtained.
(h) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably
be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or
16
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Units.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Units and the
Option Units, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the NYCB Entities contained herein
as of the Execution Time, the Closing Date and any settlement date pursuant to
Section 3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the NYCB
Entities of their respective obligations hereunder and to the following
additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such
supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) Muldoon Murphy & Faucette LLP shall have furnished to the
Underwriters their written opinion, as counsel to the Company,
addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters, to the effect
that:
(i) Each of the Company and the Bank is validly
existing as a corporation and stock savings bank, respectively,
in good standing under the laws of its jurisdiction of
organization; the Company is duly qualified to do business and is
in good standing as a foreign corporation in the State of New
York; and each of the Company, the Bank and, to the best of such
counsel's knowledge, each of the Other Subsidiaries has all
corporate or other power and authority necessary to own or hold
its property and conduct its business as described in the
Prospectus;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus under the caption "Description of Common
Stock;" and all of the issued shares of capital stock of each of
the Bank and, to the best of such counsel's knowledge, each Other
Subsidiary of the Company have been duly authorized and validly
issued and are fully paid, non-assessable and are owned directly
or indirectly by the Company;
(iii) The Indenture and the Amended and Restated Trust
Agreement are qualified under the Trust Indenture Act.
(iv) The Exercise Shares have been duly authorized and
reserved for issuance upon exercise of the Warrants; there are no
17
preemptive or other rights to subscribe for or to purchase, nor
any restriction upon the voting or transfer of, any of the
Exercise Shares pursuant to the Company's certificate of
incorporation or by-laws or any agreement or other instrument
known to such counsel; the Exercise Shares conform in all
material respects to the description thereof in the Prospectus;
and all Exercise Shares, when issued and delivered upon such
exercise in accordance with the terms of the Warrant Agreement
and, assuming payment for such Exercise Shares in the manner
contemplated by the Warrant Agreement and Unit Agreement, will be
validly issued, fully paid and nonassessable.
(v) The Units have been duly authorized and, when issued
and delivered against payment therefor in accordance with the
Unit Documents, will be valid and binding obligations of the
appropriate NYCB Entities enforceable against the appropriate
NYCB Entities and entitled to the benefits of the Unit Documents,
except to the extent the enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, and general principles of equity
(whether enforcement is sought in equity or at law); and the
Units and the Unit Agreement conform or will conform at the time
of their issuance or execution, as the case may be, in all
material respects to all statements relating thereto contained in
the Prospectus.
(vi) The Warrants have been duly authorized for issuance
and sale pursuant to this Agreement (or will have been so
authorized prior to each issuance of Units) and, when issued and
delivered pursuant to the provisions of this Agreement, and the
Warrant Agreement against payment of the consideration thereof in
accordance with this Agreement, the Warrants will be valid and
binding obligations of the Company enforceable against the
Company and entitled to the benefits of the Warrant Agreement,
except to the extent the enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, and general principles of equity
(whether enforcement is sought in equity or at law); and the
Warrants and the Warrant Agreement conform or will conform at the
time of their issuance or execution, as the case may be, in all
material respects to all statements relating thereto contained in
the Prospectus.
(vii) The Preferred Securities have been duly authorized
for issuance and sale pursuant to this Agreement (or will have
been
18
so authorized prior to each issuance of Units) and, when issued,
authenticated and delivered pursuant to the provisions of this
Agreement, and the Amended and Restated Trust Agreement against
payment of the consideration thereof in accordance with this
Agreement, the Preferred Securities will be valid and binding
obligations of the Trust enforceable against the Trust and
entitled to the benefits of the Amended and Restated Trust
Agreement, except to the extent the enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, and general principles of
equity (whether enforcement is sought in equity or at law); and
the Preferred Securities and the Amended and Restated Trust
Agreement conform or will conform at the time of their issuance
or execution, as the case may be, in all material respects to all
statements relating thereto contained in the Prospectus.
(viii) The Debentures have been duly authorized for
issuance and sale pursuant to this Agreement (or will have been
so authorized prior to each issuance of Units) and, when issued,
authenticated and delivered pursuant to the provisions of this
Agreement, and the Indenture against payment of the consideration
thereof in accordance with this Agreement, the Debentures will be
valid and binding obligations of the Company enforceable against
the Company and entitled to the benefits of the Indenture, except
to the extent the enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, and general principles of equity
(whether enforcement is sought in equity or at law); and the
Debentures and the Indenture conform or will conform at the time
of their issuance or execution, as the case may be, in all
material respects to all statements relating thereto contained in
the Prospectus.
(ix) The Guarantee has been duly authorized for issuance
pursuant to this Agreement (or will have been so authorized prior
to each issuance of Units) and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the
Guarantee Agreement, the Guarantee will be valid and binding
obligations of the Company enforceable against the Company and
entitled to the benefits of the Indenture, except to the extent
the enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar
laws relating to or affecting creditors rights generally, and
general principles of equity (whether enforcement is sought in
equity or at law); and the Guarantee and the Guarantee Agreement
conform or will conform at the time of their issuance or
execution,
19
as the case may be, in all material respects to all statements
relating thereto contained in the Prospectus.
(x) Each Operative Document to which a NYCB Entity is a
party has been duly authorized by such NYCB Entity party and
(assuming due authorization, execution and delivery thereof by
the parties thereto other than the NYCB Entities) when executed
and delivered by such NYCB Entity will constitute a valid and
binding agreement of such NYCB Entity enforceable against such
NYCB Entity in accordance with its terms, except to the extent
enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws
now or hereafter in effect relating to or affecting creditors'
rights generally and general principles of equity (whether
enforcement is sought in equity or at law), and will conform in
all material respects to the description thereof contained in the
Prospectus. Each of the Administrative Trustees is either an
officer of the Company and has been duly authorized by the
Company to serve in such capacity and to execute and deliver the
Original Trust Agreement.
(xi) The Registration Statement was declared effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the Act and no
stop order suspending the effectiveness of the Registration
Statement has been issued and, to the knowledge of such counsel,
no proceeding for that purpose is pending or threatened by the
Commission;
(xii) The Registration Statement and the Prospectus and
any further amendments or supplements thereto made by the Company
prior to such Closing Date (other than the financial statements
and related schedules therein, as to which such counsel need
express no opinion) comply as to form in all material respects
with the requirements of the Act and the documents incorporated
by reference in the Prospectus comply as to form in all material
respects with the requirements of the Exchange Act;
(xiii) To the best of such counsel's knowledge, there are
no contracts or other documents that are required to be described
in the Prospectus or filed as exhibits to the Registration
Statement by the Act, that have not been so described or filed,
and there are no contracts or other documents that are required
by the Exchange Act to be described in or filed as exhibits to
any document incorporated by reference in the Prospectus that
have not been so described or filed;
20
(xiv) This Agreement has been duly authorized, executed
and delivered by the Company;
(xv) The issue and sale of the Units being delivered on
the Closing Date and the execution, delivery and performance by
each NYCB Entity, as applicable, of this Agreement and the
Operative Documents to which such NYCB Entity is a party and the
consummation of the transactions contemplated hereby will not (A)
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which any of the
Company, the Trust, the Bank or, to the best of such counsel's
knowledge, any Other Subsidiary, is a party or by which the
Trust, the Company, the Bank or, to the best of such counsel's
knowledge, any Other Subsidiary, is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, or (B) result in any violation of the provisions of the
charter or by-laws of the Trust, the Company or any of its
subsidiaries or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body
having jurisdiction over the Trust, the Company or any of its
subsidiaries or any of their properties or assets; except, with
respect to clauses (A) and (B) as such clauses apply to the Other
Subsidiaries, for those defaults, breaches or violations that
would not reasonably be expected to have a Material Adverse
Effect; and, except for the registration of the Unit Securities
and the Exercise Shares under the Act and such consents,
approvals, authorization, registrations or qualifications as may
be required under the Exchange Act and applicable state or
foreign securities laws in connection with the purchase and
distribution of the Units by the Underwriters, no consent,
approval, authorizations or order of, or filing or registration
with, any such court or governmental agency or body is required
for the execution, delivery and performance of this Agreement and
the other Operative Documents by the NYCB Entities, as
applicable, and the consummation of the transactions contemplated
hereby;
(xvi) To the best of such counsel's knowledge, there are
no contracts, agreements or understandings between the Company
and any person granting such person the right (other than rights
which have been waived or satisfied) to require the Company to
file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or
to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or
in any securities being registered pursuant to any other
registration statement filed by the Company under the Act;
21
(xvii) To the best of such counsel's knowledge, there are
no legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or of
which any property or assets of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, might have a Material Adverse
Effect (A) any communication from any Governmental Entity
(including the Federal Reserve Board and any other bank,
insurance or securities regulatory authority) (1) threatening to
revoke any permit, license, franchise, certificate of authority
or other governmental authorization, or (2) threatening or
contemplating revocation or limitation of, or which would have
the effect of revoking or limiting, Federal Deposit Insurance
Corporation ("FDIC") deposit insurance, and (B) 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 (including the FDIC) or the
supervision or regulation of the Company or any of its
subsidiaries, or any notice 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; and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by Governmental Entities;
(xviii) The Company is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended.
(xix) The Bank is a member in good standing of the
Federal Home Loan Bank of New York, and the deposit accounts of
the Bank are insured up to the applicable limits by the FDIC.
(xx) The Bank is a stock savings bank in good standing
under the laws of New York.
(xxi) The statements contained in each of the Prospectus
and the Company's most recent annual report on Form 10-K under
the caption "Regulation and Supervision," and in the Prospectus
under the caption "Description of Common Stock," insofar as they
describe federal statutes, rules and regulations and other legal
matters constitute a fair summary thereof.
In rendering such opinion, such counsel may state that their opinion
is limited to matters governed by the Federal laws of the United
States of
22
America, the General Corporation Law of the State of Delaware and the
laws of the State of New York. Such counsel shall also have furnished
to the Underwriters a written statement, addressed to the Underwriters
and dated the Closing Date, in form and substance satisfactory to the
Underwriters, to the effect that (x) such counsel has acted as counsel
to the Company in connection with the preparation of the Registration
Statement, and (y) based on the foregoing, no facts have come to the
attention of such counsel which lead them to believe that either (I)
the Registration Statement, as of the Effective Date, contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus, as of its
date and as of the Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading or (II) any document incorporated by
reference in the Prospectus or any further amendment or supplement to
any such incorporated document made by the Company prior to the
Closing Date, when they became effective or were filed with the
Commission, as the case may be, contained, in the case of a
registration statement which became effective under the Act, any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, or, in the case of other documents
which were filed under the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) Morris, James, Hitchens & Williams LLP shall have furnished
to the Underwriters their written opinion, as special Delaware counsel
to the Trust, addressed to the Underwriters and dated the Closing
Date, in form and substance reasonably satisfactory to the
Underwriters, to the effect that:
(i) The Trust has been duly created and is validly existing in good
standing as a statutory trust under the Delaware Statutory Trust
Act and all filings required under the Delaware Statutory Trust
Act with respect to the creation and valid existence of the Trust
as a statutory trust in the State of Delaware have been made.
(ii) Under the Amended and Restated Trust Agreement and the Delaware
Statutory Trust Act, all necessary trust action has been taken on
the part of the Trust to duly authorize the execution and
delivery of this Agreement by the Trust.
23
(iii) The Preferred Securities are duly authorized by the Amended and
Restated Trust Agreement, and when issued and delivered by the
Trust in accordance with the Amended and Restated Trust
Agreement, the Preferred Securities will be duly and validly
issued and, subject to (iv) below, fully paid and nonassessable
interests in the Trust.
(iv) The holders of Preferred Securities, in their capacity as such,
will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of
Delaware. Such holders may be obligated to make payments as set
forth in the Amended and Restated Trust Agreement.
(v) Under the Amended and Restated Trust Agreement and the Delaware
Statutory Trust Act, the Trust has all necessary trust power
and authority to execute and deliver this Agreement and the
Operative Documents to which it is a party, and to perform its
obligations hereunder and thereunder.
(vi) Under the Amended and Restated Trust Agreement and the Delaware
Statutory Trust Act, the issuance and sale by the Trust of the
Preferred Securities and the execution and delivery by the
Trust of this Agreement and the Operative Documents to which it
is a party, and the performance by the Trust of its obligations
thereunder, have been duly authorized by all necessary trust
action on the part of the Trust.
(vii) Under the Delaware Statutory Trust Act and the Amended and
Restated Trust Agreement, the issuance by the Trust of the
Preferred Securities is not subject to any preemptive or other
similar rights to subscribe for any additional securities.
(viii) The execution, delivery and performance of this Agreement by
the Trust and the Operative Documents to which the Trust is a
party, and the consummation of the transactions contemplated
herein and therein by the Trust is not prohibited by any
Delaware statute or any Delaware order, rule or regulation of
any Delaware court or governmental agency or body having
jurisdiction over the Trust or any of its properties or assets,
nor will such actions result in any violation of the Original
Trust Agreement or the Trust Certificate.
(d) Morris, James, Hitchens & Williams LLP shall have furnished
to the Underwriters their written opinion, as special Delaware counsel
to the Delaware Trustee, addressed to the Underwriters and dated such
Closing Date, in form and substance reasonably satisfactory to the
Underwriters, to the effect that:
24
(i) The Delaware Trustee is duly incorporated and validly existing
as a Delaware banking corporation under the laws of the State
of Delaware.
(ii) The Delaware Trustee has the power and authority to execute,
deliver and perform its obligations under the Amended and
Restated Trust Agreement and to consummate the transactions
contemplated thereby.
(iii) The Delaware Trustee has duly authorized, executed and
delivered the Amended and Restated Trust Agreement.
(e) The Representatives shall have received from each of Weil,
Gotshal & Manges LLP and Luse Gorman Pomerenk & Schick, P.C. as
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Units, the Registration Statement, the
Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Underwriters a
certificate, dated the Closing Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating
that:
(i) The representations, warranties and agreements of
the NYCB Entities in Section 1 are true and correct as of the
Closing Date; each of the NYCB Entities have complied with all
its agreements contained herein; and the conditions set forth
in Subsection (a) of this Section 6 have been fulfilled; and
(ii) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as of
the Closing Date, the Registration Statement and Prospectus did
not include any untrue statement of a material fact and did not
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
(B) since the Effective Date no event has occurred which should
have been set forth in a supplement or amendment to the
Registration Statement or the Prospectus.
(g) The Company shall have requested and caused KPMG LLP to
have furnished to the Representatives, at the Execution Time and at
the Closing Date, letters, dated respectively as of the Execution Time
and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within
25
the meaning of the Act and the Exchange Act and the respective
applicable rules and regulations adopted by the Commission thereunder
and that they have performed a review of the unaudited interim
financial information of the Company for the nine- and three-month
periods ended June 30, 2002 and June 30, 2001 and as at June 30, 2002
and June 30, 2001 in accordance with Statement on Auditing Standards
No. 71, and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus and
reported on by them comply as to form in all material respects
with the applicable accounting requirements of the Act and the
Exchange Act and the related rules and regulations adopted by the
Commission;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; their limited review, in accordance with standards
established under Statement on Auditing Standards No. 71, of the
unaudited interim financial information for the nine- and
three-month periods ended June 30, 2002 and June 30, 2001 and as
at June 30, 2002 and June 30, 2001, as indicated in their report
dated January 23, 2002 incorporated by reference in the
Registration Statement and the Prospectus; carrying out certain
specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders and directors of the Company and
the Subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions
and events subsequent to December 31, 2001, nothing came to their
attention which caused them to believe that:
1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus do not comply as to form in all material respects with
applicable accounting requirements of the Act and with the
related rules and regulations adopted by the Commission with
respect to financial statements included or incorporated by
reference in quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included or
26
incorporated by reference in the Registration Statement and the
Prospectus;
2) with respect to the period subsequent to June 30, 2002,
there were any changes, at a specified date not more than five
days prior to the date of the letter, in the deposits or
borrowings of the Company and its subsidiaries or capital stock
of the Company or decreases in the stockholders' equity of the
Company as compared with the amounts shown on the June 30, 2002,
consolidated balance sheet included or incorporated by reference
in the Registration Statement and the Prospectus, or for the
period from July 1, 2002 to such specified date there were any
decreases, as compared with the corresponding period in the
preceding quarter in net interest income, non interest income,
net interest income after provision for loan losses or in total
or per share amounts of net income of the Company and its
subsidiaries, except in all instances for changes or decreases
set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives; and
3) the information included or incorporated by reference in
the Registration Statement and Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data) and Item
503(d) (Ratio of Earnings to Fixed Charges) is not in conformity
with the applicable disclosure requirements of Regulation S-K;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Prospectus and in Exhibit 12 to the
Registration Statement, including the information set forth under
the captions "Selected Consolidated Financial Data" in the
Prospectus, the information included or incorporated by reference
in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form
10-K, incorporated by reference in the Registration Statement and
the Prospectus, the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q, incorporated by
reference in the Registration Statement and the Prospectus,
agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
27
(h) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph
(f) of this Section 6 or (ii) any change, or any development involving
a prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement
thereto) the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the sole judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Units as contemplated by
the Registration Statement (exclusive of any amendment thereof) and
the Prospectus (exclusive of any supplement thereto).
(i) Subsequent to the Execution Time, there shall not have been
any decrease in the rating of any of the Company's securities by any
"nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change.
(j) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit A
hereto from substantially all of the officers and directors of the
Company addressed to the Representatives.
(k) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Weil, Gotshal & Manges LLP, counsel for the
Underwriters, at 767 Fifth Avenue, New York, New York 10153, on the Closing
Date.
28
7. Reimbursement of Underwriters' Expenses. If the sale of the Units
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the NYCB Entities to perform any agreement
herein or comply with any provision hereof other than by reason of a default by
any of the Underwriters, the NYCB Entities will reimburse the Underwriters
severally through Salomon Smith Barney Inc. on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Units.
8. Indemnification and Contribution. (a) The NYCB Entities agree to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Units as originally filed or in any amendment thereof, or in any Preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the NYCB Entities will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to NYCB Entities by or on
behalf of any Underwriter through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which
NYCB Entities may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless each of the NYCB Entities, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
NYCB Entities within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from each of the NYCB Entities to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to each of the NYCB Entities by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have. The
NYCB Entities acknowledge that the statements set forth [in the last paragraph
of the cover page regarding delivery of the Units and, under the heading "Plan
of Distribution," (i) the list of Underwriters and their respective
participation in the sale of the Units,
29
(ii) the sentences related to concessions and reallowances and (iii) the
paragraph related to stabilization, syndicate covering transactions and penalty
bids] in any Preliminary Prospectus and the Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in any Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the NYCB Entities and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively
30
"Losses") to which the Company and one or more of the Underwriters may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the NYCB Entities on the one hand and by the Underwriters on the
other from the offering of the Units; provided, however, that in no case shall
any Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Units) be responsible for any amount in excess
of the underwriting discount or commission applicable to the Units purchased by
such Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the NYCB Entities shall
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by it, and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Prospectus. Relative fault
shall be determined by reference to, among other things, whether any untrue or
any alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by NYCB
Entities on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The NYCB Entities and the
Underwriters agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
NYCB Entities within the meaning of either the Act or the Exchange Act, each
officer of NYCB Entities who shall have signed the Registration Statement and
each director of NYCB Entities shall have the same rights to contribution as the
NYCB Entities, subject in each case to the applicable terms and conditions of
this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Units agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Units set forth
opposite their names in Schedule I hereto bears to the aggregate amount of Units
set forth opposite the names of all the remaining Underwriters) the Units which
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of Units which
the defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Units set forth in Schedule I hereto, the
31
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Units, and if such nondefaulting
Underwriters do not purchase all the Units, this Agreement will terminate
without liability to any nondefaulting Underwriter or the NYCB Entities. In the
event of a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to NYCB Entities and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Units, if at any time prior to such
time (i) trading in the Company's Common Stock shall have been suspended by the
Commission or the Nasdaq National Market or trading in securities generally on
the New York Stock Exchange or the Nasdaq National Market shall have been
suspended or limited or minimum prices shall have been established on the New
York Stock Exchange or Nasdaq National Market, (ii) a banking moratorium shall
have been declared either by Federal or New York State authorities, including
the Federal Reserve Board and any other bank, insurance or securities regulatory
authority or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Units as contemplated by the
Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Units. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to Salomon Smith Barney General
Counsel (fax no.: (212) 816-7912) and confirmed to the General
Counsel, Salomon Smith Barney, at 388 Greenwich Street, New York, New
York, 10013 and to Rod Miller, Esq., Weil, Gotshal & Manges LLP, 767
Fifth Avenue, New York, NY 10153 (Fax: (212) 310-8007);
32
(b) if to the Company or to the Trust, shall be delivered or
sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Chief
Executive Officer (Fax: (516) 683-8385) with a copy to Douglas P.
Faucette, Esq., Muldoon Murphy & Faucette LLP, 5101 Wisconsin Avenue,
N.W., Washington, D.C. 20016 (Fax: (202) 966-9409);
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Underwriters, which address will be supplied to any other party hereto by the
Underwriters upon request. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Company shall be entitled
to act and rely upon any request, consent, notice or agreement given or made by
the Underwriters on behalf of the Underwriters.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the NYCB Entities,
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the NYCB Entities
contained in this Agreement shall also be deemed to be for the benefit of the
directors, officers and partners of each Underwriter and the person or persons,
if any, who control any Underwriter within the meaning of Section 15 of the Act
and (B) the indemnity agreement of the Underwriters contained in Section 8(b) of
this Agreement shall be deemed to be for the benefit of directors of the
Company, officers of the Company who have signed the Registration Statement and
any person controlling the Company within the meaning of Section 13 of the Act.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to in this Section 13, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
14. Survival. The respective indemnities, representations, warranties
and agreements of the NYCB Entities and the Underwriters contained in this
Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Units and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
15. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
17. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
33
18. Definitions. The terms that follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday
or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
and preliminary prospectus supplement referred to in paragraph 1(a)
above and any preliminary prospectus included in the Registration
Statement at the Effective Date that omits Rule 430A Information.
"Prospectus" shall mean the prospectus and prospectus supplement
relating to the Units that is first filed pursuant to Rule 424(b)
after the Execution Time or, if no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the
Units included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean
such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include
any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 424," "Rule 430A" and "Rule 462" refer to such rules under
the Act.
34
"Rule 430A Information" shall mean information with respect to
the Units and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement
referred to in Section 1(a) hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
NYCB Entities and the several Underwriters.
35
Very truly yours,
New York Community Bancorp, Inc.
By /s/ Joseph R. Ficalora
------------------------------------
Name: Joseph R. Ficalora
Title: President and Chief Executive
Officer
New York Community Capital Trust V
By /s/ Thomas R. Cangemi
-----------------------------------
Name: Thomas R. Cangemi
Title: Administrative Trustee
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Smith Barney Inc.
By: /s/ Jack D. McSpadden
------------------------------
Name: Jack D. McSpadden
Title: Managing Director
For itself and the other
several Underwriters named in
Schedule I to the foregoing
Agreement
36
[Form of Lock-Up Agreement] EXHIBIT A
[Letterhead of officer, director or major stockholder of
Corporation]
New York Community Bancorp, Inc.
New York Community Capital Trust V
Public Offering of Bifurcated Option Note Unit Securities (BONUSES)
, 2002
Salomon Smith Barney Inc.
Lehman Brothers Inc.
Bear, Stearns & Co. Inc.
Keefe, Bruyette & Woods, Inc
Sandler O'Neill & Partners, L.P.
As Representatives of the several Underwriters,
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between New York
Community Capital Trust V, a Delaware statutory trust (the "Trust"), New York
Community Bancorp, Inc. (the "Company"), and each of you as representatives of a
group of Underwriters named therein, relating to an underwritten public offering
of Bifurcated Option Note Unit Securities (BONUSES) (the "Units"), of the
Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Salomon Smith Barney Inc., offer, sell, contract to sell, pledge or
otherwise dispose of, (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
Units, shares of capital stock of the Company ("Common Stock") or any securities
convertible into or exercisable or
exchangeable for Common Stock, the preferred security component of the Units
(the "Preferred Securities"), any securities substantially similar to the
Preferred Securities, or any guarantee of such securities, or publicly announce
an intention to effect any such transaction, for a period of 90 days after the
date of the Underwriting Agreement, other than Units or Common Stock disposed of
as bona fide gifts approved by Salomon Smith Barney Inc.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Yours very truly,
[Signature of officer, director or major
stockholder]
[Name and address of officer, director or
major stockholder]
2
SCHEDULE I
Underwriters Number of
Underwritten Units
to be Purchased
Salomon Smith Barney Inc. ................................. 2,400,000
Lehman Brothers Inc ....................................... 1,200,000
Bear, Stearns & Co. Inc ................................... 480,000
Keefe, Bruyette & Woods, Inc .............................. 360,000
Sandler O'Neill & Partners, L.P ........................... 360,000
------------------
Total ................................................ 4,800,000
==================
3
SCHEDULE II
CFS Investments, Inc.
Queens County Capital Management, Inc.
Richmond County Capital Corp.
RCBK Mortgage Corp.
Main Omni Realty Corp.
RCSB Corporation
Peter B. Cannell & Co., Inc.
Richmond Investment Corp.
Ironbound Investment Corp.
Columbia Preferred Capital Corp.
Queens Realty Trust, Inc.,
CFS Investments New Jersey, Inc.
Pacific Urban Renewal Corp.,
MFO Holding Corp.
Columbia Resources Corp.
Columbia Funding Corporation
Bayonne Service Corp.
Haven Capital Trust I
Haven Capital Trust II
Queens Capital Trust I
NYCB Capital Trust I
New York Community Statutory Trust I
Queens County Statutory Trust I
New York Community Statutory Trust II
Columbia Travel Services, Inc.
Richmond Enterprises Inc.
New York Community Capital Trust I
New York Community Capital Trust II
New York Community Capital Trust III
New York Community Capital Trust IV
New York Community Capital Trust V
4