EXHIBIT 4(h)(ii)
AMENDED AND RESTATED DECLARATION OF TRUST
NEW YORK COMMUNITY CAPITAL TRUST V
Dated as of ___________, 2002
TABLE OF CONTENTS
Page
ARTICLE I INTERPRETATION AND DEFINITIONS ......................................................... 1
Section 1.1. Interpretation ................................................................... 1
Section 1.2. Definitions ...................................................................... 2
ARTICLE II TRUST INDENTURE ACT .................................................................... 15
Section 2.1. Trust Indenture Act; Application ................................................. 15
Section 2.2. Lists of Holders ................................................................. 15
Section 2.3. Reports by the Property Trustee .................................................. 16
Section 2.4. Periodic Reports to the Property Trustee ......................................... 16
Section 2.5. Evidence of Compliance with Conditions Precedent ................................. 16
Section 2.6. Trust Enforcement Events; Waiver ................................................. 16
Section 2.7. Trust Enforcement Events; Notice ................................................. 18
ARTICLE III ORGANIZATION ........................................................................... 18
Section 3.1. Name ............................................................................. 18
Section 3.2. Office ........................................................................... 18
Section 3.3. Purpose .......................................................................... 18
Section 3.4. Authority ........................................................................ 19
Section 3.5. Title to Property of the Trust ................................................... 19
Section 3.6. Prohibition of Actions by the Trust and the Trustees ............................. 20
Section 3.7. Powers and Duties of the Administrative Trustees ................................. 21
Section 3.8. Powers and Duties of the Property Trustee ........................................ 23
Section 3.9. Certain Duties and Responsibilities of the Property Trustee ...................... 25
Section 3.10. Certain Rights of the Property Trustee ........................................... 27
Section 3.11. Powers and Duties of the Delaware Trustee ........................................ 29
Section 3.12. Not Responsible for Recitals or Issuance of Securities ........................... 30
Section 3.13. Duration of the Trust ............................................................ 30
Section 3.14. Mergers, Consolidations, Conversions, Amalgamations or
Replacements of the Trust ........................................................ 30
Section 3.15. Property Trustee May File Proofs of Claim ........................................ 32
ARTICLE IV SPONSOR ................................................................................ 33
Section 4.1. Responsibilities of the Sponsor .................................................. 33
Section 4.2. Indemnification and Expenses of the Trustees ..................................... 33
Section 4.3. Right to Proceed ................................................................. 34
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TABLE OF CONTENTS
(continued)
Page
ARTICLE V TRUSTEES ............................................................................... 34
Section 5.1. Number of Trustees ............................................................... 34
Section 5.2. Delaware Trustee; Eligibility .................................................... 34
Section 5.3. Property Trustee; Eligibility .................................................... 35
Section 5.4. Qualifications of Administrative Trustees Generally .............................. 36
Section 5.5. Initial Administrative Trustees .................................................. 36
Section 5.6. Appointment, Removal and Resignation of Trustees ................................. 36
Section 5.7. Vacancies among Trustees ......................................................... 38
Section 5.8. Effect of Vacancies .............................................................. 38
Section 5.9. Meetings ......................................................................... 38
Section 5.10. Delegation of Power by the Administrative Trustees ............................... 38
Section 5.11. Merger, Conversion, Consolidation or Succession to Business ...................... 39
ARTICLE VI THE SECURITIES ......................................................................... 39
Section 6.1. General Provisions Regarding the Securities ...................................... 39
Section 6.2. Execution and Authentication ..................................................... 40
Section 6.3. Form and Dating .................................................................. 41
Section 6.4. The Sponsor's Purchase of the Common Securities .................................. 42
Section 6.5. Distributions .................................................................... 43
Section 6.6. Remarketing ...................................................................... 45
Section 6.7. Limited Right to Require Exchange of Preferred Securities and
Repurchase of Debentures ......................................................... 51
Section 6.8. Change of Control Right to Require Exchange of Preferred
Securities and Repurchase of Debentures .......................................... 52
Section 6.9. Redemption ....................................................................... 53
Section 6.10. Distribution of Debentures in Exchange for Securities Upon
the Occurrence of a Special Event ................................................ 56
Section 6.11. Voting Rights of the Preferred Securities ........................................ 57
Section 6.12. Voting Rights of the Common Securities ........................................... 60
Section 6.13. Ranking .......................................................................... 61
Section 6.14. Registrar, Paying Agent and Transfer Agent ....................................... 61
Section 6.15. Paying Agent to Hold Money in Trust .............................................. 62
Section 6.16. Replacement Securities ........................................................... 62
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TABLE OF CONTENTS
(continued)
Page
Section 6.17. Outstanding Preferred Securities ................................................. 62
Section 6.18. Preferred Securities in Treasury ................................................. 63
Section 6.19. Deemed Security Holders .......................................................... 63
Section 6.20. Cancellation ..................................................................... 63
Section 6.21. CUSIP Numbers .................................................................... 63
Section 6.22. Global Preferred Securities; Legends ............................................. 63
ARTICLE VII TRANSFER OF SECURITIES ................................................................. 67
Section 7.1. Transfer of Securities ........................................................... 67
Section 7.2. Separation and Rejoining of Units ................................................ 68
Section 7.3. Book-Entry Interests ............................................................. 69
Section 7.4. Notices to Clearing Agency ....................................................... 69
Section 7.5. Appointment of Successor Clearing Agency ......................................... 70
ARTICLE VIII DISSOLUTION AND TERMINATION OF THE TRUST ............................................... 70
Section 8.1. Dissolution and Termination of the Trust ......................................... 70
Section 8.2. Liquidation Distribution Upon Dissolution or Termination of the Trust ............ 71
ARTICLE IX LIMITATION OF LIABILITY OF THE HOLDERS, THE TRUSTEES OR OTHERS ......................... 72
Section 9.1. Liability ........................................................................ 72
Section 9.2. Exculpation ...................................................................... 72
Section 9.3. Fiduciary Duty ................................................................... 73
Section 9.4. Indemnification of Company Indemnified Persons ................................... 74
Section 9.5. Indemnification of Trustees ...................................................... 76
Section 9.6. Outside Businesses ............................................................... 77
ARTICLE X ACCOUNTING ............................................................................. 77
Section 10.1. Fiscal Year ...................................................................... 77
Section 10.2. Certain Accounting Matters ....................................................... 78
Section 10.3. Banking .......................................................................... 78
Section 10.4. Withholding ...................................................................... 78
ARTICLE XI AMENDMENTS AND MEETINGS ................................................................ 79
Section 11.1. Amendments ....................................................................... 79
Section 11.2. Meetings of the Holders; Action by Written Consent ............................... 81
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TABLE OF CONTENTS
(continued)
Page
ARTICLE XII REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE ....................... 83
Section 12.1. Representations and Warranties of the Property Trustee ........................... 83
Section 12.2. Representations and Warranties of the Delaware Trustee ........................... 83
ARTICLE XIII MISCELLANEOUS .......................................................................... 84
Section 13.1. Notices .......................................................................... 84
Section 13.2. Governing Law .................................................................... 85
Section 13.3. Intention of the Parties ......................................................... 85
Section 13.4. Headings ......................................................................... 85
Section 13.5. Successors and Assigns ........................................................... 86
Section 13.6. Partial Enforceability ........................................................... 86
Section 13.7. Counterparts ..................................................................... 86
Section 13.8. The Exchange Agent ............................................................... 86
iv
CROSS-REFERENCE TABLE/(1)/
Section of Trust Indenture
Act of 1939, as amended Section
- ----------------------- -------
310(a) 5.3
310(b) 5.3(c); 5.3(d)
310(c) Not Applicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Not Applicable
312(a) 2.2(a)
312(b) 2.2(b)
312(c) Not Applicable
313(a) 2.3
313(b) 2.3
313(c) 2.3
313(d) 2.3
314(a) 2.4; 3.7(i)
314(b) Not Applicable
314(c) 2.5
314(d) Not Applicable
314(e) 2.5
314(f) Not Applicable
315(a) 3.9(a); 3.10(a)
315(b) 2.7(a)
315(c) 3.9(a)
315(d) 3.9(b)
316(a) 2.6; 6.10(b); 6.11(c)
316(b) Not Applicable
316(c) Not Applicable
317(a) 3.8(h); 3.15
317(b) Not Applicable
- ----------------
(1) This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
AMENDED AND RESTATED DECLARATION OF TRUST (the "Declaration")
dated and effective as of __________, 2002, by and among the Trustees (as
defined herein), the Sponsor (as defined herein) and the Holders (as defined
herein), from time to time, of undivided beneficial interests in the assets of
the Trust to be issued pursuant to this Declaration;
WHEREAS, the Delaware Trustee (as defined herein), the
Administrative Trustees (as defined herein) and the Sponsor established New York
Community Capital Trust V (the "Trust"), a trust created under the Statutory
Trust Act (as defined herein) pursuant to a Declaration of Trust dated as of
April 18, 2002 (the "Original Declaration"), and a Certificate of Trust filed
with the Secretary of State of the State of Delaware on April 18, 2002 for the
sole purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust, investing the proceeds thereof
in certain Debentures of the Debenture Issuer (each as hereinafter defined), and
engaging in only those activities necessary, advisable or incidental thereto;
and
WHEREAS, all of the Trustees and the Sponsor by this Declaration,
amend and restate each and every term and provision of the Original Declaration;
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, ratify the actions of each Trustee and the Sponsor taken on behalf
of the Trust prior to the date hereof;
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a statutory trust under the Statutory Trust Act and that
this Declaration constitute the governing instrument of such statutory trust,
the Trustees declare that all assets contributed to the Trust will be held in
trust for the benefit of the Holders, from time to time, of the Securities (as
defined herein) representing undivided beneficial interests in the assets of the
Trust issued hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1. Interpretation.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in Section
1.2;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "this Declaration" are to this Declaration
as modified, supplemented or amended from time to time in accordance with the
provisions hereof;
(d) all references in this Declaration to Articles, Sections and
Exhibits are to Articles and Sections of and Exhibits to this Declaration unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration; and
(f) a reference to the singular includes the plural and vice
versa, and a reference to any masculine form of a term includes the feminine
form of such term, as applicable.
Section 1.2. Definitions.
The following terms have the following meanings:
"Accreted Value" means, on the date of determination:
(1) with respect to any Security, the Accreted Value of a
Debenture having an aggregate principal amount equal to the
aggregate stated liquidation amount of such Security; and
(2) with respect to any Debenture, the sum of:
(i) $33.18, which is the portion of the initial
purchase price of a Unit that is allocated to a
Preferred Security (as provided under Section 3.1
of the Unit Agreement); plus
(ii) accretion of the Discount, calculated using a per
annum coupon of 6.0%, payable quarterly, and an
all-in-yield of 9.10% per annum on a quarterly
bond equivalent yield basis using a 360-day year
of twelve 30-days months until such sum equals $50
on the Expiration Date.
"Administrative Trustee" has the meaning set forth in Section 5.4.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent, Registrar or Transfer Agent.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for the beneficial interests in the Global Preferred Securities,
the rules and procedures of the Depositary that apply to such transfer or
exchange.
"Authorized Officer" of a Person means any other Person that is
authorized to legally bind such former Person.
"Book-Entry Interest" means a beneficial interest in the Global
Preferred Securities registered in the name of a Clearing Agency or its nominee,
ownership and transfers of which shall be maintained and made through
book-entries by a Clearing Agency.
"Business Day" means any day other than a Saturday or a Sunday or a
day on which banking institutions in (i) the Borough of Manhattan in The City of
New York, or (ii) Wilmington, Delaware are authorized or required by law,
regulation or executive order to close.
2
"Calculation Agency Agreement" means the Calculation Agency Agreement,
dated as of _________, 2002, between the Sponsor and the Calculation Agent, as
amended, supplemented or replaced from time to time.
"Calculation Agent" means the Property Trustee, as initial Calculation
Agent under the Calculation Agency Agreement, and any successor thereto.
"Certificate" means a Common Securities Certificate or a Preferred
Securities Certificate.
"Change of Control" shall be deemed to have occurred upon the
occurrence of any of the following:
(1) the acquisition (other than open market purchases on any
national securities exchange or the Nasdaq National Market
on which the Sponsor's capital stock is traded) by any
person, including any syndicate or group deemed to be a
"person" under Section 13(d)(3) of the Exchange Act, of
beneficial ownership, directly or indirectly, through a
purchase, merger or other acquisition transaction or series
of purchase, merger or other acquisition transactions of
shares of the Sponsor's capital stock entitling that person
to exercise 50% or more of the total voting power of all
shares of the Sponsor's capital stock entitled to vote
generally in elections of directors, other than any such
acquisition by the Sponsor, any of the Sponsor's
subsidiaries or any of the Sponsor's employee benefit plans;
or
(2) the consolidation or merger of the Sponsor with or into any
other Person, any merger of another Person into the Sponsor,
or any conveyance, transfer, sale, lease or other
disposition of all or substantially all of the Sponsor's
properties and assets to another Person, other than:
(a) any transaction (i) that does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
the Sponsor's capital stock and (ii) notwithstanding such transaction, during
any period of two consecutive years after such transaction individuals who at
the beginning of such period constituted the board of directors of the Sponsor
(together with any new directors whose election or appointment by such board or
whose nomination for election by the shareholders of the Sponsor was approved by
a vote of not less than two-thirds of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) continue to constitute at
least 50% of the board of directors of the Sponsor then in office; or
(b) any merger solely for the purpose of changing the Sponsor's
jurisdiction of incorporation and resulting in a reclassification, conversion or
exchange of outstanding shares of common stock solely into shares of common
stock of the surviving entity;
provided, however, that a Change of Control shall not be deemed to
have occurred if:
(i) the closing sale price per share of the Sponsor's
common stock for any five Trading Days within the
period of 10 consecutive Trading Days ending
immediately after the later of the Change of Control or
the public announcement of the Change of Control, in
the case of a Change of Control under clause (1) above,
or the
3
period of 10 consecutive Trading Days ending
immediately before the Change of Control, in the case
of a Change of Control under clause (2) above, equals
or exceeds 110% of the Conversion Price; or
(ii) at least 90% of the consideration in the transaction or
transactions constituting a Change of Control consists
of shares of common stock traded or to be traded
immediately following such Change of Control on a
national securities exchange or the Nasdaq National
Market and, as a result of such transaction or
transactions, the Warrants become exercisable solely
into such common stock (and any rights attached
thereto).
For the purposes of the foregoing, a beneficial owner of shares of the
Sponsor's capital stock shall be determined in accordance with Rule 13d-3
promulgated by the Commission under the Exchange Act.
"Change of Control Notice Date" has the meaning set forth in Section
6.8.
"Change of Control Repurchase Date" means the date which is 225 days
following the Change of Control Notice Date.
"Change of Control Repurchase Price" means the Accreted Value of the
Debentures that are exchanged for Preferred Securities upon the exercise of the
Change of Control Repurchase Right plus accrued and unpaid interest (including
deferred interest) on such Debentures to, but excluding, the Change of Control
Repurchase Date.
"Change of Control Repurchase Right" has the meaning set forth in
Section 6.8.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Preferred Securities and in whose name or in the name of a nominee of
that organization shall be registered the Global Preferred Securities and which
shall undertake to effect book-entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency,
"Closing Date" means the "Closing Date" under the Underwriting
Agreement.
"Closing Price" of any security on any date of determination means:
(1) the closing sale price (or, if no closing sale price is
reported, the last reported sale price) of such security on
the New York Stock Exchange on such date;
(2) if such security is not listed for trading on the New York
Stock Exchange on any such date, the closing sale price as
reported in the composite transactions for the principal
U.S. securities exchange on which such security is so
listed;
4
(3) if such security is not so listed on a U.S. national or
regional securities exchange, the closing sale price as
reported by the Nasdaq National Market;
(4) if such security is not so reported, the last quoted bid
price for such security in the over-the-counter market as
reported by the National Quotation Bureau or similar
organization; or
(5) if such bid price is not available, the average of the
mid-point of the last bid and ask prices of such security on
such date from at least three nationally recognized
independent investment banking firms retained for this
purpose by the Sponsor.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation. A reference to a specific section of the
Code refers not only to such specific section but also to any corresponding
provision of any federal tax statute enacted after the date of this Declaration,
as such specific section or corresponding provision is in effect on the date of
application of the provisions of this Declaration containing such reference.
"Commission" means the United States Securities and Exchange
Commission as from time to time constituted, or if at any time after the
execution of this Declaration such Commission is not existing and performing the
duties now assigned to it under applicable federal securities laws, then the
body performing such duties at such time.
"Common Securities" has the meaning set forth in Section 6.1(a).
"Common Securities Certificate" means a certificate in fully
registered form representing Common Securities, substantially in the form of
Exhibit B.
"Common Stock" means the common stock of the Sponsor.
"Company Indemnified Person" means:
(1) any Administrative Trustee;
(2) any Affiliate of any Administrative Trustee;
(3) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Administrative
Trustee; or
(4) any officer, employee or agent of the Trust or its
Affiliates.
"Compounded Distributions" has the meaning set forth in Section
6.5(b).
"Conversion Price" shall have the meaning set forth in the Warrant
Agreement.
"Corporate Trust Office" means the office of the Property Trustee at
which the corporate trust business of the Property Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Declaration is located at 1100 North Market Street, Rodney
Square North, Wilmington, Delaware 19890.
5
"Coupon Rate" has the meaning set forth in Section 6.5(a).
"Covered Person" means:
(1) any officer, director, shareholder, partner, member,
representative, employee or agent of (a) the Trust or (b)
the Trust's Affiliates; and
(2) any Holder.
"Debenture Distribution Notice" has the meaning set forth in Section
6.10(c).
"Debenture Issuer" means New York Community Bancorp, Inc., a Delaware
corporation, or any successor entity resulting from any consolidation,
amalgamation, merger or other business combination, in its capacity as issuer of
the Debentures under the Indenture.
"Debentures" means the 6.00% Junior Subordinated Deferrable Interest
Debentures due 2051 to be issued by the Debenture Issuer pursuant to the
Indenture and to be purchased by the Trust.
"Definitive Preferred Securities" has the meaning set forth in Section
6.3.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Depositary" means DTC until another Clearing Agency becomes its
successor.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Discount" equals the difference between the principal amount of
$50.00 payable in respect of a Debenture on November 1, 2051 and the initial
purchase price of $33.18.
"Distribution" has the meaning set forth in Section 6.5(b).
"Distribution Date" has the meaning set forth in Section 6.5(b).
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation, and the rules and regulations
promulgated thereunder.
"Exchange Agent" means, initially, the Property Trustee in its
capacity as Exchange Agent, and any successor thereto.
"Exchange Notice" has the meaning set forth in Section 8.2(c).
"Exercise Price" has the meaning set forth in the Warrant Agreement.
"Extension Period" has the meaning set forth in Section 6.5(c).
"Expiration Date" has the meaning set forth in the Warrant Agreement.
6
"Failed Remarketing" has the meaning set forth in Section 6.6(n).
"Failed Remarketing Date" means a Remarketing Date on which a Failed
Remarketing occurs.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"Fiduciary Indemnified Person" has the meaning set forth in Section
9.5.
"First Supplemental Indenture" means the First Supplemental Indenture,
dated as of __________, 2002, between the Debenture Issuer and the Indenture
Trustee.
"Fiscal Year" has the meaning set forth in Section 10.1.
"Global Preferred Security" has the meaning set forth in Section 6.3.
"Global Unit Certificate" has the meaning set forth in Section 6.3.
"Guarantee" means the Guarantee Agreement, dated as of ___________,
2002, between the Sponsor, as Guarantor in respect of the Securities, and
Wilmington Trust Company, as Guarantee Trustee, as amended or supplemented from
time to time in accordance with the terms thereof.
"Holder" means a Person in whose name a Security is registered, such
Person being a beneficial owner within the meaning of the Statutory Trust Act.
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the Indenture, dated as of __________, 2002, between
the Debenture Issuer and the Indenture Trustee, as amended or supplemented from
time to time in accordance with the terms thereof, including the First
Supplemental Indenture, dated as of __________, 2002, between the Debenture
Issuer and the Indenture Trustee, pursuant to which the Debentures are to be
issued.
"Indenture Event of Default" means an Event of Default (as such term
is defined in the Indenture) under the Indenture.
"Indenture Trustee" means Wilmington Trust Company, a Delaware banking
corporation, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Interest Payment Date" has the meaning set forth in the First
Supplemental Indenture.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation, and the rules and
regulations promulgated thereunder.
7
"Investment Company Event" means the receipt by the Trust of an
Opinion of Counsel, rendered by an independent law firm having a recognized
national securities practice, to the effect that, as a result of the occurrence
of a change in law or regulation or a change in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in Investment Company Act Law"), there is more
than an insubstantial risk that the Trust is or will be considered an Investment
Company that is required to be registered under the Investment Company Act,
which Change in Investment Company Act Law becomes effective on or after the
date on which the Preferred Securities were initially issued and sold.
"Issuers" is a collective reference to the Sponsor and the Trust.
"Legal Action" has the meaning set forth in Section 3.7(f).
"Legal Cause Remarketing Event" means a Remarketing Event that occurs
upon the occurrence of:
(1) a Tax Event or an Investment Company Event; provided that
the Administrative Trustees have been informed by an
independent law firm that such firm, for substantive
reasons, cannot deliver a No Recognition Opinion to the
Trust; or
(2) a Regulatory Capital Event; and
the Sponsor elects to cause a Remarketing of the Preferred Securities to occur
and causes written notice of its election to be given to the Holders of the
Preferred Securities, the holders of the Units and the holders of the Warrants.
"Legal Requirements" mean compliance with all applicable laws and
regulations, if any, including, without limitation, the Securities Act,
necessary to permit (i) the Remarketing of the Preferred Securities (and the
subsequent exchange of Preferred Securities for Debentures if a purchaser in the
Remarketing so elects to exchange its purchased Preferred Securities for
Debentures pursuant to Section 6.6(c)), (ii) the contemporaneous modifications
to the terms of the Debentures pursuant to the Indenture and (iii) the
contemporaneous redemption of the Warrants.
"Like Amount" means, with respect to a redemption of the Securities,
Securities having an Accreted Value equal to the Accreted Value of Debentures to
be repaid in accordance with their terms.
"Liquidation" has the meaning set forth in Section 8.2(a).
"Liquidation Distribution" has the meaning set forth in Section
8.2(b).
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in Liquidation Amount" means, except as provided in the
terms of the Preferred Securities or by the Trust Indenture Act, Holders of
outstanding Securities voting together as a single class, or, as the context may
require, Holders of outstanding Preferred Securities or Holders of outstanding
Common Securities, voting separately as a class, who are the record owners of
more than 50% of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accumulated and
unpaid
8
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities or all outstanding Securities of the relevant class,
as the case may be.
"Maturity Remarketing Date" means two Business Days prior to the
Expiration Date.
"90-Day Period" has the meaning set forth in Section 6.10(a).
"No Recognition Opinion" has the meaning set forth in Section
6.10(b)(i).
"Officers' Certificate" means, when delivered by the Trust, a
certificate signed by a majority of the Administrative Trustees and, when
delivered by the Sponsor, a certificate signed by any two of the Chairman, a
Vice Chairman, the Chief Executive Officer, the President, a Vice President, the
Chief Financial Officer, the Treasurer, the Chief Accounting Officer, the
Secretary or an Assistant Secretary of the Sponsor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Declaration shall include, where applicable:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, rendered by
an independent law firm which shall be acceptable to the Property Trustee.
"Optional Redemption Remarketing Event" means a Remarketing Event that
occurs because:
(1) on any date on or after November 4, 2007 but prior to May 7,
2051, the Closing Price of a share of the Common Stock
exceeds and has exceeded for at least 20 Trading Days within
the immediately preceding 30 consecutive Trading Days and on
the day on which the Sponsor elects to redeem the Warrants,
125% of the Conversion Price; and
(2) within ten Business Days of such date, the Sponsor causes
written notice of its election to be given to the Holders of
the Preferred Securities, the holders of the Units and the
holders of the Warrants.
"Original Declaration" has the meaning set forth in the Recitals
hereto.
"Paying Agent" has the meaning set forth in Section 6.14.
9
"Payment Amount" has the meaning set forth in Section 6.5(f).
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities" has the meaning set forth in Section 6.1(a).
"Preferred Securities Certificate" means a certificate in fully
registered form representing Preferred Securities, substantially in the form of
Exhibit A.
"Preferred Security Beneficial Owner" means, with respect to a
Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Property Account" means a segregated non-interest bearing trust
account maintained with a banking institution, the rating on whose long-term
unsecured indebtedness is at least equal to the rating assigned to the Preferred
Securities by a "nationally recognized statistical rating organization" within
the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act or any successor
rule.
"Property Trustee" has the meaning set forth in Section 5.3(a).
"Pro Rata" means pro rata to each Holder according to the aggregate
stated liquidation amount of the Securities held by such Holder in relation to
the aggregate stated liquidation amount of all Securities outstanding unless, in
relation to a payment, a Trust Enforcement Event has occurred and is continuing,
in which case any funds available to make such payment shall be paid first to
each Holder of the Preferred Securities pro rata according to the aggregate
stated liquidation amount of Preferred Securities held by the relevant Holder
relative to the aggregate stated liquidation amount of all Preferred Securities
outstanding, and only after satisfaction of all amounts owed to the Holders of
the Preferred Securities, to each Holder of Common Securities pro rata according
to the aggregate stated liquidation amount of Common Securities held by the
relevant Holder relative to the aggregate stated liquidation amount of all
Common Securities outstanding.
"Quorum" means a majority of the Administrative Trustees or, if there
are only two Administrative Trustees, both of them.
"Redemption Date" has the meaning set forth in Section 6.9(a).
"Redemption Notice" has the meaning set forth in Section 6.9(c).
"Redemption Price" has the meaning set forth in Section 6.9(a).
"Registrar" has the meaning set forth in Section 6.14.
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"Regular Record Date" means the date on which determination is made as
to which Holders' Distributions are payable.
"Regulatory Capital Event" means that the Sponsor shall have become,
or pursuant to law or regulation will become within 180 days, subject to capital
requirements under which, in the written Opinion of Counsel, rendered by an
independent bank regulatory law firm experienced in such matters, the Preferred
Securities would not constitute [Tier 1 Capital] applied as if the Sponsor (or
its successor) were a bank holding company (as that concept is used in the
guidelines or regulations issued by the Board of Governors of the Federal
Reserve System as of the date hereof (or its then equivalent)).
"Remarketing" means the operation of the procedures for remarketing
set forth in Section 6.6.
"Remarketing Agent" means the remarketing agent (or any successor
remarketing agent) selected by the Sponsor, which will initially be Salomon
Smith Barney Inc.
"Remarketing Agreement" means the a remarketing agreement to be
entered into among the Sponsor, the Trust and the Remarketing Agent, with
customary and typical terms and conditions at the time of the execution thereof.
"Remarketing Date" means:
(1) with respect to an Optional Redemption Remarketing Event or
a Legal Cause Remarketing Event, two Business Days prior to
the Warrant Redemption Date; and
(2) with respect to the expiration of the Warrants, the Maturity
Remarketing Date.
"Remarketing Event" means the occurrence of an Optional Redemption
Remarketing Event, a Legal Cause Remarketing Event or the Maturity Remarketing
Date.
"Remarketing Settlement Date" means (i) with respect to a Remarketing
upon expiration of the Warrants, the Expiration Date and (ii) with respect to a
Remarketing upon an Optional Redemption Remarketing Event or a Legal Cause
Remarketing Event, the Warrant Redemption Date.
"Repurchase Price" means the principal amount at maturity of the
Debentures that are received in exchange for Preferred Securities upon the
exercise of the Repurchase Right plus accrued and unpaid interest (including
deferred interest) on such Debentures to, but excluding, the applicable Special
Distribution Date.
"Repurchase Right" has the meaning set forth in Section 6.7(a).
"Reset Rate" means the interest rate per annum on the Debentures (and,
as a result, the Distribution rate per annum on the Securities), that is
determined pursuant to the Remarketing of the Preferred Securities; provided,
however, that if a Failed Remarketing occurs, the Reset Rate shall equal 11.10%
per annum.
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"Responsible Officer" means, with respect to the Property Trustee, any
officer within the corporate trust department of the Property Trustee, including
any vice president, assistant vice president, assistant treasurer, trust officer
or any other officer of the Property Trustee who customarily performs functions
similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and in each case who shall have direct responsibility for the
administration of this Declaration.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act, or any
successor rule or regulation thereunder, and the rules and regulations
promulgated thereunder.
"Security" or "Securities" mean the Common Securities and the
Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation, and the rules and regulations
promulgated thereunder.
"66 2/3% in Liquidation Amount" means, except as provided in the
Preferred Securities or by the Trust Indenture Act, Holders of outstanding
Securities voting together as a single class or, as the context may require,
Holders of outstanding Preferred Securities or Holders of outstanding Common
Securities voting separately as a class, who are the record owners of 66 2/3% or
more of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities or all outstanding Securities of the relevant class,
as the case may be.
"Special Distribution Date" means the fifteenth day of each calendar
month on which the Repurchase Price shall be payable if a Holder of a Preferred
Security elects to exercise its Repurchase Right.
"Special Event" has the meaning set forth in Section 6.10(a).
"Special Record Date" means the Remarketing Date.
"Sponsor" means New York Community Bancorp, Inc., a Delaware
corporation, or any success or entity resulting from any merger, consolidation,
amalgamation or replacement by or conveyance, transfer or lease of its
properties as an entirety or substantially as an entirety, in its capacity as
sponsor of the Trust.
"Statutory Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Successor Delaware Trustee" has the meaning set forth in Section
5.6(c).
"Successor Entity" has the meaning set forth in Section 3.14(b)(i).
"Successor Property Trustee" has the meaning set forth in Section
5.6(b).
"Successor Securities" has the meaning set forth in Section
3.14(b)(i)(B).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
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"Tax Event" means the receipt by the Trust of an Opinion of Counsel,
rendered by an independent law firm having a recognized national tax practice,
to the effect that, as a result of:
(1) any amendment to, change in or announced proposed change in,
the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority
thereof or therein; or
(2) any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations,
which amendment or change is effective or proposed change, administrative
pronouncement or judicial decision is announced on or after the Closing Date,
there is more than an insubstantial risk that:
(a) the Trust is, or will be within 90 days of the date of such
opinion, subject to United States federal income tax with respect to interest
received or accrued on the Debentures; or
(b) the Trust is, or will be within 90 days of the date of such
opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"10% in Liquidation Amount" means, except as provided in the terms of
the Preferred Securities or by the Trust Indenture Act, Holders of outstanding
Securities voting together as a single class or, as the context may require,
Holders of outstanding Preferred Securities or Holders of outstanding Common
Securities voting separately as a class, who are the record owners of 10% or
more of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities or all outstanding Securities of the relevant class,
as the case may be.
"Trading Day" means any day on which shares of NYCB common stock or
other capital stock then issuable upon exercise of the warrants:
(1) are not suspended from trading on any national securities
association or exchange or over-the-counter market at the
close of business; and
(2) have traded at least once on the national securities
association or exchange or over-the-counter market that is
the primary market for the trading of NYCB common stock.
"Transfer Agent" has the meaning set forth in Section 6.14.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust" has the meaning set forth in the Recitals hereto.
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"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Enforcement Event" means, with respect to the Securities, an
event of default under this Declaration, which occurs upon the happening of an
Indenture Event of Default.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation and the rules and
regulations promulgated thereunder.
"Underwriting Agreement" means the underwriting agreement, dated
October 28, 2002, between the Sponsor, the Trust and the Underwriters with
respect to the initial offering and sale of the Units, Preferred Securities and
Warrants.
"Underwriters" means Salomon Smith Barney Inc., Lehman Brothers Inc.,
Bear, Stearns & Co. Inc., Keefe, Bruyette & Woods, Inc., and Sandler O'Neill &
Partners, L.P.
"Unit" means the collective rights and obligations of a holder of a
unit certificate issued under the Unit Agreement in respect of a Preferred
Security and a Warrant.
"Unit Agent" means Wilmington Trust Company as initial Unit Agent
under the Unit Agreement, and any successor thereto.
"Unit Agreement" means the Unit Agreement, dated ___________, 2002,
among the Sponsor, the Trust, the Unit Agent, the Property Trustee and the
Warrant Agent, as amended or supplemented from time to time.
"Warrant" or "Warrants" has the meaning set forth in the Warrant
Agreement.
"Warrant Agent" means Wilmington Trust Company as initial Warrant
Agent under the Warrant Agreement, and any successor thereto.
"Warrant Agreement" means the Warrant Agreement, dated _____________,
2002, between the Sponsor and the Warrant Agent, as amended or supplemented from
time to time.
"Warrant Redemption Date" means the date on which the Warrants are
redeemed pursuant to the Warrant Agreement.
"Warrant Requirements" mean:
(1) a registration statement covering the issuance and sale or
resale of Common Stock to the holders of Warrants upon
exercise of such Warrants shall be effective under the
Securities Act, or such issuance and sale shall be exempt
from the registration requirements of the Securities Act;
(2) the shares of Common Stock shall be registered, qualified or
deemed to be exempt under the securities laws of the state
of residence of such holder of Warrants; and
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(3) a then current prospectus shall be available for delivery to
exercising holders of the Warrants.
"Warrant Value" has the meaning set forth in the Warrant
Agreement.
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration in order for this
Declaration to be qualified under the Trust Indenture Act and shall be governed,
to the extent applicable, by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the Trust's classification as a grantor trust for
United States federal income tax purposes and shall not affect the nature of the
Securities as equity securities representing undivided beneficial interests in
the assets of the Trust.
Section 2.2. Lists of Holders.
(a) Except when the Property Trustee is the Registrar, each of
the Sponsor and the Administrative Trustees on behalf of the Trust shall provide
the Property Trustee a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders"):
(i) as of the Regular Record Date or other record date
relating to the payment of any Distribution, at least
one Business Day prior to the date for payment of such
Distribution, except while the Preferred Securities are
represented by one or more Global Preferred Securities,
and
(ii) at any other time, within 30 days of receipt by the
Trust of a written request from the Property Trustee
for a List of Holders as of a date no more than fifteen
days before such List of Holders is given to the
Property Trustee.
If at any time the List of Holders does not differ from the most recent List of
Holders provided to the Property Trustee by the Sponsor and the Administrative
Trustees on behalf of the Trust, then neither the Sponsor nor the Administrative
Trustees shall be obligated to deliver such List of Holders. The Property
Trustee shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
the capacity as Paying
15
Agent (if acting in such capacity); provided that the Property Trustee may
destroy any List of Holders previously given to it on receipt of a new List of
Holders.
(b) The Property Trustee shall comply with its obligations
under, and shall be entitled to the benefits of, Sections 311(a), 311(b) and
312(b) of the Trust Indenture Act.
Section 2.3. Reports by the Property Trustee.
Within 60 days after May 15 of each year (commencing with the
year of the first anniversary of the issuance of the Preferred Securities), the
Property Trustee shall provide to the Holders of the Preferred Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any, in
the form and in the manner provided by Section 313 of the Trust Indenture Act.
The Property Trustee also shall comply with the requirements of Section 313(d)
of the Trust Indenture Act.
Section 2.4. Periodic Reports to the Property Trustee.
Each of the Sponsor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such documents, reports and
information as are required by Section 314 of the Trust Indenture Act, if any,
and the compliance certificate required by Section 314 of the Trust Indenture
Act in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act.
Section 2.5. Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee annually such evidence of
compliance with any conditions precedent provided for in this Declaration that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act may be given in the form of an
Officers' Certificate.
Section 2.6. Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of the
Preferred Securities may waive, by vote or written consent, on behalf of the
Holders of all of the Preferred Securities, any past Trust Enforcement Events in
respect of the Preferred Securities and its consequences; provided, however,
that if the underlying Indenture Event of Default:
(i) is not waivable under the Indenture, the related Trust
Enforcement Event under this Declaration also shall not
be waivable; or
(ii) requires the vote or consent of the holders of greater
than a majority in aggregate principal amount of the
Debentures (a "Super Majority") to be waived under the
Indenture, the related Trust Enforcement Event under
this Declaration only may be waived by the vote or
written consent of the Holders of at least the
proportion in aggregate liquidation amount of the
Preferred
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Securities that the relevant Super Majority represents
of the aggregate principal amount of the Debentures
outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu
of Section 316(a)(1)(B) of the Trust Indenture Act and Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act.
Upon such waiver, any such Trust Enforcement Event in respect of
the Preferred Securities arising therefrom shall be deemed to have been cured
for every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other Trust Enforcement Event with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of a Trust Enforcement Event with respect to the
Preferred Securities also shall be deemed to constitute a waiver by the Holders
of the Common Securities of any such Trust Enforcement Event with respect to the
Common Securities for all purposes of this Declaration without any further act,
vote or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may waive, by vote or written consent, on behalf of the Holders of
all of the Common Securities, any past Trust Enforcement Event in respect of the
Common Securities and its consequences; provided that if the underlying
Indenture Event of Default is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Trust
Enforcement Event as provided below in this Section 2.6(b), the related Trust
Enforcement Event under this Declaration also shall not be waivable. The Holders
of Common Securities shall be deemed to have waived any and all Trust
Enforcement Events with respect to the Common Securities and the consequences
thereof until all Trust Enforcement Events with respect to the Preferred
Securities have been cured, waived or otherwise eliminated. Until all Trust
Enforcement Events in respect of the Preferred Securities shall have been so
cured, waived or otherwise eliminated, the Property Trustee shall be deemed to
be acting solely on behalf of the Holders of the Preferred Securities and only
the Holders of the Preferred Securities shall have the right to direct the
Property Trustee in accordance with the terms of the Securities.
The foregoing provisions of this Section 2.6(b) shall be in lieu
of Section 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act, and
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such cure, waiver or other elimination, any such default shall cease to
exist and any Trust Enforcement Event with respect to the Common Securities
arising therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other default
or Trust Enforcement Event with respect to the Common Securities or impair any
right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Preferred Securities constitutes
a waiver of the related Trust Enforcement Event under this Declaration. The
foregoing provisions of this Section 2.6(c) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act, and Section 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act.
Section 2.7. Trust Enforcement Events; Notice.
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(a) The Property Trustee shall, within 90 days after the
occurrence of a Trust Enforcement Event actually known to a Responsible Officer,
transmit by mail, first class postage prepaid, to the Holders, notice of such
Trust Enforcement Event unless such Trust Enforcement Event has been cured
before the giving of such notice; provided, however, that except for a default
in the payment of principal of (or premium, if any) or interest on any of the
Debentures, the Property Trustee shall be protected in withholding such notice
if and so long as a Responsible Officer in good faith determines that the
withholding of such notice is in the interests of the Holders.
(b) The Property Trustee shall not be deemed to have knowledge
of any Trust Enforcement Event except for:
(i) a default under Sections 2.4(a) and 2.4(b) of the First
Supplemental Indenture; or
(ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible
Officer charged with the administration of this
Declaration shall have actual knowledge.
ARTICLE III
ORGANIZATION
Section 3.1. Name.
The Trust is named "New York Community Capital Trust V", as such
name may be modified from time to time by the Administrative Trustees following
written notice to the Holders. The Trust's activities may be conducted under the
name of the Trust.
Section 3.2. Office.
The address of the principal office of the Trust is c/o New York
Community Bancorp, Inc., 615 Merrick Avenue, Westbury, New York 11590. On ten
Business Days' written notice to the Holders, the Administrative Trustees may
designate another principal office.
Section 3.3. Purpose.
The exclusive purposes and functions of the Trust are:
(a) to issue and sell the Securities;
(b) to use the proceeds from the sale of the Securities to
acquire the Debentures; and
(c) except as otherwise limited herein, to engage in only those
other activities necessary, advisable or incidental thereto and to the issuance
of the Units.
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By acceptance of this Trust, none of the Trustees, the Sponsor,
the Holders or the Preferred Security Beneficial Owners will take any position
that is contrary to the classification of the Trust as a grantor trust for
United States federal income tax purposes.
Section 3.4. Authority.
(a) Subject to the limitations provided in this Declaration and
to the specific duties of the Property Trustee, the Administrative Trustees
shall have exclusive authority to carry out the purposes of the Trust. Any
action taken by the Administrative Trustees in accordance with their powers
shall constitute the act of and shall serve to bind the Trust, and any action
taken by the Property Trustee on behalf of the Trust in accordance with its
powers shall constitute the act of and shall serve to bind the Trust. In dealing
with the Trustees acting on behalf of the Trust, no Person shall be required to
inquire into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Declaration.
(b) Except as expressly set forth in this Declaration and except
if a meeting of the Administrative Trustees is called with respect to any matter
over which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
(c) Unless otherwise determined by the Administrative Trustees
and except as otherwise required by the Statutory Trust Act or applicable law,
any Administrative Trustee is authorized to execute on behalf of the Trust any
documents which the Administrative Trustees have the power and authority to
cause the Trust to execute pursuant to Section 3.7.
(d) Notwithstanding anything contained herein or elsewhere to
the contrary, the Trust has power and authority and is hereby authorized and
empowered, without the need for any further action on its part to execute,
deliver and perform its obligations under this Agreement, the Unit Agreement,
the Underwriting Agreement, the Common Securities Subscription Agreement, the
Debentures Subscription Agreement, the Units and the Securities.
Section 3.5. Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures
and the Property Account or as otherwise provided in this Declaration, legal
title to all assets of the Trust shall be vested in the Trust. The Holders shall
not have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial interest in the assets of the Trust.
Section 3.6. Prohibition of Actions by the Trust and the Trustees.
The Trust shall not, the Trustees shall not, and the
Administrative Trustees shall cause the Trust not to, engage in any activity
other than as required or authorized by this Declaration. In particular, the
Trust shall not, the Trustees shall not, and the Administrative Trustees shall
cause the Trust not to:
(i) invest any proceeds received by the Trust in connection
with its ownership of Debentures, but the Trust shall
distribute all such proceeds to Holders pursuant to the
terms of this Declaration and of the Securities;
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(ii) acquire any assets other than as expressly provided
herein;
(iii) possess any power or otherwise act in such a way as
to vary the Trust assets;
(iv) possess property for any purpose other than a Trust
purpose;
(v) make any loans or incur any indebtedness other than
loans represented by the Debentures;
(vi) mortgage or pledge any of the Trust's assets;
(vii) possess any power or otherwise act in such a way as
to vary the terms of the Securities in any way
whatsoever (except to the extent expressly authorized
in this Declaration or by the terms of the
Securities);
(viii) issue any securities or other evidences of ownership
of, or beneficial interest in, the Trust other than
the Securities;
(ix) other than as provided in this Declaration or by the
terms of the Securities:
(A) direct the time, method and place of conducting
any proceeding with respect to any remedy
available to the Indenture Trustee, or
exercising any trust or power conferred upon the
Indenture Trustee with respect to the
Debentures;
(B) waive any past Indenture Event of Default that
is waivable under the Indenture;
(C) exercise any right to rescind or annul any
declaration that the principal of all the
Debentures shall be due and payable; or
(D) consent to any amendment, modification or
termination of the Indenture or the Debentures
where such consent shall be required, unless the
Trust shall have received an opinion of a
nationally recognized independent tax counsel
experienced in such matters to the effect that
such amendment, modification or termination will
not cause more than an insubstantial risk that
the Trust will not be classified as a grantor
trust for United States federal income tax
purposes;
(x) take any action inconsistent (in the case of the
Property Trustee or the Delaware Trustee, to the
actual knowledge of a Responsible Officer thereof)
with the status of the Trust as a grantor trust for
United States federal income tax purposes; or
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(xi) revoke any action previously authorized or approved by
vote of the Holders of the Preferred Securities.
Section 3.7. Powers and Duties of the Administrative Trustees.
The Administrative Trustees shall have the exclusive power, duty
and authority to cause the Trust to engage in the following activities to:
(a) establish the terms and forms of the Securities in the
manner specified in Section 6.1 and to issue and sell the Securities in
accordance with this Declaration; provided, however, that:
(i) the Trust may issue no more than one series of
Preferred Securities and no more than one series of
Common Securities;
(ii) there shall be no interests in the Trust other than
the Securities; and
(iii) the issuance of Securities shall be limited to a
simultaneous issuance of both Preferred Securities and
Common Securities on the Closing Date;
(b) acquire the Debentures with the proceeds of the sale of the
Securities; provided, however, that the Administrative Trustees shall cause
legal title to the Debentures to be beneficially held in the name of the
Property Trustee for the benefit of the Holders;
(c) give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Special Event;
(d) establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders as to such actions and applicable record dates;
(e) take all actions and perform such duties as may be required
of the Administrative Trustees or the Trust pursuant to the terms of this
Declaration, the Unit Agreement, the Underwriting Agreement, the Common
Subscription Agreement, the Debenture Subscription Agreement, the Units and the
Securities;
(f) bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e) the Property Trustee has the
exclusive power to bring such Legal Action;
(g) employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants to conduct only those services that the Administrative Trustees have
authority to conduct directly, and to pay reasonable compensation for such
services;
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(h) cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(i) give to the Property Trustee the certificate required by
Section 314(a)(4) of the Trust Indenture Act, which certificate may be executed
by any Administrative Trustee;
(j) incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(k) act as, or appoint another Person to act as, Registrar and
Transfer Agent for the Securities or to appoint a Paying Agent for the
Securities as provided in Section 6.14;
(l) give prompt written notice to the Property Trustee and to
Holders of any notice received from the Debenture Issuer of its election to
defer payments of interest on the Debentures by extending the interest payment
period under the Indenture;
(m) take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory trust under the laws of the State of
Delaware and of each other jurisdiction in which such existence is necessary to
protect the limited liability of the Holders or to enable the Trust to effect
the purposes for which the Trust was created;
(n) take any action not inconsistent with this Declaration or
with applicable law that the Administrative Trustees determine in their
discretion to be necessary or desirable in carrying out the purposes and
functions of the Trust as set forth in Section 3.3 or the activities of the
Trust as set out in this Section 3.7, as long as such action does not materially
adversely affect the interests of the Holders, including but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment
Company Act;
(ii) causing the Trust to be classified as a grantor trust
for United States federal income tax purposes; and
(iii) cooperating with the Debenture Issuer to ensure that
the Debentures will be treated as indebtedness of the
Debenture Issuer for United States federal income tax
purposes;
(o) take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Administrative Trustees on
behalf of the Trust;
(p) execute and deliver all documents or instruments, including
the Unit Agreement, the Underwriting Agreement, the Common Securities
Subscription Agreement, the Debentures Subscription Agreement, the Units and the
Securities, perform all duties and powers, and do all things for and on behalf
of the Trust in all matters necessary or incidental to the foregoing; and
22
(q) to prepare any registration statements or reports required
to be filed or submitted with the Commission with respect to the Securities
pursuant to the Exchange Act.
The Administrative Trustees shall exercise the powers set forth
in this Section 3.7 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.3, and the Administrative Trustees
shall have no power to, and shall not, take any action that is inconsistent with
the purposes and functions of the Trust set forth in Section 3.3.
Subject to this Section 3.7, the Administrative Trustees shall
have none of the powers or the authority of the Property Trustee set forth in
Section 3.8.
Any expenses incurred by the Administrative Trustees pursuant to
this Section 3.7 shall be reimbursed by the Debenture Issuer.
Unless otherwise required by the Statutory Trust Act or other
applicable law, such Administrative Trustee, acting alone, is authorized to
execute and deliver on behalf of the Trust, any documents, instruments or
certificates that the Administrative Trustees have the power and authority to
execute pursuant to this Section 3.7.
Section 3.8. Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and
beneficially held in the name of the Property Trustee in trust for the benefit
of the Trust and the Holders. The right, title and interest of the Property
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Section 5.6. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents with regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Administrative Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain the Property Account in the
name of and under the exclusive control of the
Property Trustee on behalf of the Holders and, upon
the receipt of payments of funds made in respect of
the Debentures, deposit such funds into the Property
Account and make payments or (cause the Paying Agent
to make payments) to the Holders from the Property
Account in accordance with Section 6.5. Funds in the
Property Account shall be held uninvested until
disbursed in accordance with this Declaration;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of
the Securities to the extent the Debentures are
redeemed or mature; and
(iii) upon written direction by the Sponsor to dissolve the
Trust, engage in such ministerial activities as shall
be necessary or
23
appropriate to effect the distribution of the
Debentures to the Holders in exchange for the
Securities.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of this Declaration, the Unit Agreement and the Securities.
(e) Subject to Section 3.9(a), the Property Trustee shall take
any Legal Action which arises out of or in connection with:
(i) a Trust Enforcement Event of which a Responsible
Officer has actual knowledge; or
(ii) the Property Trustee's duties and obligations under
this Declaration or the Trust Indenture Act;
provided, however, that if a Trust Enforcement Event has occurred and is
continuing and such Trust Enforcement Event is attributable to the failure of
the Debenture Issuer to pay the principal of or premium, if any, or interest on
the Debentures on the date such principal, premium, if any, or interest is
otherwise payable (or in connection with a distribution of Debentures in
exchange for Preferred Securities and repurchase of Debentures under Sections
6.7 and 6.8), a Holder of Preferred Securities may institute, to the fullest
extent permitted by law, a proceeding directly against the Debenture Issuer to
enforce payment to such Holder of the principal of or premium, if any, or
interest on the Debentures having an aggregate principal amount equal to the
aggregate liquidation amount of the Preferred Securities of such Holder (a
"Direct Action") on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the rights of the Holders of
the Common Securities will be subrogated to the rights of such Holder of
Preferred Securities to the extent of any payment made by the Debenture Issuer
to such Holder of Preferred Securities in such Direct Action. Except as provided
in the preceding sentences, the Holders of Preferred Securities will not be able
to exercise directly any other remedy available to the holders of the
Debentures.
(f) The Property Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders
pursuant to the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and
has accepted that appointment in accordance with
Section 5.6.
(g) The Property Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if a Trust Enforcement Event actually known to a Responsible
Officer occurs and is continuing, the Property Trustee shall enforce, for the
benefit of Holders, its rights as holder of the Debentures subject to the rights
of the Holders pursuant to the terms of such Securities.
(h) The Property Trustee shall be authorized to undertake any
actions set forth in Section 317(a) of the Trust Indenture Act.
24
(i) The Property Trustee may authorize one or more Persons to
act as additional Paying Agents and to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all Securities, and
any such Paying Agent shall comply with Section 317(b) of the Trust Indenture
Act. Any such additional Paying Agent may be removed by the Property Trustee at
any time, and a successor Paying Agent or additional Paying Agents may be
appointed at any time by the Property Trustee.
(j) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the Administrative
Trustees set forth in Section 3.7.
The Property Trustee shall exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Property Trustee shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set out in Section 3.3.
Section 3.9. Certain Duties and Responsibilities of the Property Trustee.
(a) If a Trust Enforcement Event has occurred (that has not been
cured or waived pursuant to Section 2.6) of which a Responsible Officer has
actual knowledge, the Property Trustee shall exercise such of the rights and
powers vested in it by this Declaration, and shall use the same degree of care
and skill in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event
and after the cure or waiver of all such Trust
Enforcement Events that may have occurred:
(A) the duties and obligations of the Property Trustee
shall be determined solely by the express
provisions of this Declaration and in the
Securities, and the Property Trustee shall not be
liable except for the performance of such duties
and obligations as are specifically set forth in
this Declaration and in the Securities, and no
implied covenants or obligations shall be read
into this Declaration against the Property
Trustee; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Property Trustee and
conforming on their face to the requirements of
this Declaration; provided, however, that in the
case of any such certificates or opinions that by
any provision hereof are specifically required to
be furnished to the Property Trustee, the Property
Trustee shall be under a duty to
25
examine such certificates or opinions to determine
whether or not on their face they conform to the
requirements of this Declaration (but need not
confirm or investigate the accuracy of
mathematical calculations or other facts stated
therein);
(ii) the Property Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Property
Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
(iii) the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it
without negligence, in good faith in accordance with
the direction of the Holders of not less than a
Majority in Liquidation Amount of the Securities
relating to the time, method and place of conducting
any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this
Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise
of any of its rights or powers;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of
the Debentures and the Property Account shall be to
deal with such property in a similar manner as the
Property Trustee deals with similar property for its
own account, subject to the protections and
limitations on liability afforded to the Property
Trustee under this Declaration and the Trust
Indenture Act;
(vi) the Property Trustee shall have no duty or liability
for or with respect to the value, genuineness,
existence or sufficiency of the Debentures or the
payment of any taxes or assessments levied thereon or
in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree in writing with the Sponsor, and
money held by the Property Trustee need not be
segregated from other funds held by it except in
relation to the Property Account maintained by the
Property Trustee pursuant to Section 3.8(c)(i) and
except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative
Trustees or the Sponsor with their respective duties
under this Declaration, nor shall the
26
Property Trustee be liable for any default or
misconduct of the Administrative Trustees or the
Sponsor.
Section 3.10. Certain Rights of the Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall
be fully protected in acting or refraining from
acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document believed by it to be genuine and to have
been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Sponsor or the
Administrative Trustees contemplated by this
Declaration shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever in the administration of this Declaration,
the Property Trustee shall deem it desirable that a
matter be proved or established before taking,
suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein
specifically prescribed) may request, in the absence
of bad faith on its part, and conclusively rely upon
an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Sponsor
or the Administrative Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument
(including any financing or continuation statement or
any filing under tax or securities laws) or any
rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel or
other experts of its selection and the advice or
opinion of such counsel and experts with respect to
legal matters or advice within the scope of such
experts' area of expertise shall be full and complete
authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Sponsor or any of
its Affiliates and may include any of its employees.
The Property Trustee shall have the right at any time
to seek instructions concerning the administration of
this Declaration from any court of competent
jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Declaration at the request or direction of any
Holder, unless such Holder shall have provided to the
Property Trustee security and indemnity, reasonably
satisfactory to the Property Trustee, against the
costs,
27
expenses (including reasonable attorneys' fees and
expenses and the expenses of the Property Trustee's
agents, nominees or custodians) and liabilities that
might be incurred by it in complying with such
request or direction, including such reasonable
advances as may be requested by the Property Trustee;
provided that nothing contained in this Section
3.10(a)(vi) shall be taken to relieve the Property
Trustee, upon the occurrence of an Indenture Event of
Default (of which the Property Trustee is deemed to
have knowledge as provided in Section 2.7(b) hereof),
of its obligation to exercise the rights and powers
vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the
Property Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it sees fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder
either directly or by or through agents, custodians,
nominees or attorneys, and the Property Trustee shall
not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed with
due care by it hereunder;
(ix) any action taken by the Property Trustee or its
agents hereunder shall bind the Trust and the
Holders, and the signature of the Property Trustee or
its agents alone shall be sufficient and effective to
perform any such action, and no third party shall be
required to inquire as to the authority of the
Property Trustee to so act or as to its compliance
with any of the terms and provisions of this
Declaration, both of which shall be conclusively
evidenced by the Property Trustee's or its agent's
taking such action;
(x) whenever in the administration of this Declaration
the Property Trustee shall deem it desirable to
receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder,
the Property Trustee:
(A) may request instructions from the Holders which
instructions may only be given by the Holders of
the same proportion in liquidation amount of the
Securities as would be entitled to direct the
Property Trustee under the terms of the
Securities in respect of such remedy, right or
action;
28
(B) may refrain from enforcing such remedy or right
or taking such other action until such
instructions are received; and
(C) shall be protected in conclusively relying on or
acting in accordance with such instructions;
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under
any obligation to take any action that is
discretionary under the provisions of this
Declaration;
(xii) with respect to the calculation of the Accreted
Value, the Property Trustee may conclusively rely
upon the calculation thereof determined by the
Calculation Agent; and
(xiii) the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it
without negligence, in good faith and reasonably
believed by it to be authorized or within the
discretion, rights or powers conferred upon it by
this Declaration.
(b) No provision of this Declaration shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
Section 3.11. Powers and Duties of the Delaware Trustee.
Notwithstanding any other provision of this Declaration other
than Section 5.2, the Delaware Trustee shall not be entitled to exercise any
powers of, nor shall the Delaware Trustee have any of the duties and
responsibilities of, the Administrative Trustees or the Property Trustee
described in this Declaration (except as required under the Statutory Trust
Act). Except as set forth in Section 5.2, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Statutory Trust Act. In the event the Delaware Trustee is
required to take any action or perform any duty hereunder, the Delaware Trustee
shall be entitled to the benefits of Sections 3.9(b)(ii) to (viii), inclusive,
and Section 3.10. No implied covenants or obligations shall be read into this
Declaration against the Delaware Trustee.
Section 3.12. Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration, the Securities, the Debentures or the Indenture.
29
Section 3.13. Duration of the Trust.
The Trust, unless earlier dissolved or terminated pursuant to the
provisions of Article VIII, shall have existence up to November 1, 2051.
Section 3.14. Mergers, Consolidations, Conversions, Amalgamations or
Replacements of the Trust.
(a) The Trust may not merge with or into, consolidate with,
convert into, amalgamate with, or be replaced by, or convey, transfer or lease
its properties and assets as an entirety or substantially as an entirety to, any
Person, except as described in Section 3.14(b) and 3.14(c) and except with
respect to the distribution of Debentures to Holders pursuant to Article 6 or
Article 8 of this Declaration.
(b) At the request of the Sponsor and with the consent of the
Administrative Trustees or, if there are more than two, a majority of the
Administrative Trustees and without the consent of the Holders, the Delaware
Trustee or the Property Trustee, the Trust may merge with or into, consolidate
with, convert into, amalgamate with, be replaced by or convey, transfer or lease
its properties and assets as an entirety or substantially as an entirety to, a
trust organized as such under the laws of any state; provided that:
(i) if the Trust is not the successor entity, such successor
entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the
Trust with respect to the Securities; or
(B) substitutes for the Securities other securities
having substantially the same terms as the
Securities (the "Successor Securities"), so long as
the Successor Securities rank the same as the
Securities rank in priority with respect to
Distributions and payments upon liquidation,
redemption and otherwise;
(ii) if the Trust is not the successor entity, the Sponsor
expressly appoints a trustee of the Successor Entity
that possesses the same powers and duties as the
Property Trustee as the holder of the Debentures;
(iii) the Successor Securities are, or upon notification of
issuance will be, listed (or eligible for trading) on
any national securities exchange or with any other
organization on which the Preferred Securities were
listed or quoted (or otherwise eligible for trading)
prior to such merger, consolidation, conversion,
amalgamation, replacement, conveyance, transfer or
lease;
(iv) if the Preferred Securities (including any Successor
Securities) are rated by any nationally recognized
statistical rating organization prior to such
transaction, such merger, consolidation, conversion,
amalgamation, replacement,
30
conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating
organization;
(v) such merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of
the Holders (including any Successor Securities) in any
material respect (other than with respect to any dilution of
such Holders' interests in the new entity);
(vi) such Successor Entity, if not the Trust, has a purpose
identical in all material respects to that of the Trust;
(vii) prior to such merger, consolidation, conversion,
amalgamation, replacement, conveyance, transfer or lease,
the Sponsor has received an Opinion of Counsel to the Trust,
rendered by an independent law firm experienced in such
matters, to the effect that:
(A) such merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges
of the Holders of the Securities (including any
Successor Securities) in any material respect (other
than with respect to any dilution of the Holders'
interest in the new entity);
(B) following such merger, consolidation, conversion,
amalgamation, replacement, conveyance, transfer or
lease, neither the Trust nor the Successor Entity will
be required to register as an Investment Company; and
(C) following such merger, consolidation, conversion,
amalgamation, replacement, conveyance, transfer or
lease, the Trust (or the Successor Entity) will
continue to be classified as a grantor trust for United
States federal income tax purposes;
(viii) if the Trust is not the successor entity, the Sponsor or any
permitted successor or assignee owns all of the common
securities of such Successor Entity and guarantees the
obligations of such Successor Entity under the Successor
Securities at least to the extent provided by the Guarantee;
(ix) the Successor Entity expressly assumes all of the
obligations of the Trust; and
31
(x) there shall have been furnished to the Property Trustee
an Officers' Certificate and an Opinion of Counsel to
the effect that all conditions precedent in this
Declaration to such transaction have been satisfied.
(c) Notwithstanding Section 3.14(b), the Trust shall not, except
with the consent of Holders of 100% in aggregate liquidation amount of the
Securities, merge with or into, consolidate with, convert into, amalgamate with,
be replaced by, or convey, transfer or acquire by conveyance, transfer or lease
its properties and assets as an entirety or substantially as an entirety to, any
other Person or permit any other Person to merge with or into, consolidate with,
convert into, amalgamate with, replace it, acquire by conveyance, transfer or
lease its properties and assets as an entirety or substantially as an entirety,
if such merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease would cause the Trust or the Successor Entity to
be classified as other than a grantor trust for United States federal income tax
purposes or would cause each Holder of Securities not to be treated as owning an
undivided beneficial interest in the Debentures.
Section 3.15. Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Trust or any other obligor
upon the Securities or the property of the Trust or of such other obligor or
their creditors, the Property Trustee (irrespective of whether any Distributions
on the Securities are then due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee has
made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise to:
(a) file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Securities (or, if the
Securities are original issue discount securities, such portion of the
liquidation amount as may be specified in the terms of such securities) and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding; and
(b) collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Property Trustee and, in the event the Property Trustee consents
to the making of such payments directly to the Holders, to pay to the Property
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel, and
any other amounts due the Property Trustee.
Nothing contained herein shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt, on behalf of any
Holder, any plan of reorganization, arrangement, adjustment or compensation
affecting the Securities or the rights of any Holder or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
32
ARTICLE IV
SPONSOR
Section 4.1. Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the Commission one or
more Registration Statements on Form S-3 in relation to the Preferred
Securities, including any amendments thereto;
(b) to determine the states in which to take appropriate action
to qualify or register for sale all or part of the Preferred Securities and to
do any and all such acts, other than actions which must be taken by the Trust,
and advise the Trust of actions it must take, and prepare for execution and
filing any documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
states;
(c) if the Preferred Securities are separately traded from the
Units and the applicable exchange listing requirements are met, to prepare for
execution and filing by the Trust an application to permit the Preferred
Securities to trade or be quoted or listed in or on the New York Stock Exchange
or any other national securities exchange, quotation system or the Nasdaq
National Market for listing or quotation upon notice of issuance of the
Preferred Securities; and
(d) to prepare any registration statements or reports required to
be filed or submitted with the Commission with respect to the Securities
pursuant to the Exchange Act.
Section 4.2. Indemnification and Expenses of the Trustees.
The Sponsor, in its capacity as Debenture Issuer, agrees to
indemnify the Property Trustee and the Delaware Trustee (including in their
respective individual capacities) for, and to hold each of them harmless
against, any loss, liability or expense incurred without negligence or bad faith
on the part of the Property Trustee or the Delaware Trustee, as the case may be,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending either
of them against any claim or liability in connection with the exercise or
performance of any of their respective powers or duties hereunder. The
provisions of this Section 4.2 shall survive the resignation or removal of the
Delaware Trustee or the Property Trustee and the termination of this
Declaration.
Section 4.3. Right to Proceed.
The Sponsor acknowledges the rights of the Holders of Preferred
Securities, in the event that a failure of the Trust to pay Distributions on the
Preferred Securities is attributable to the failure of the Debenture Issuer to
pay interest or principal on the Debentures, to institute a Direct Action
against the Debenture Issuer for enforcement of its payment obligations on the
Debentures.
33
ARTICLE V
TRUSTEES
Section 5.1. Number of Trustees.
The number of Trustees initially shall be five, and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of Trustees
may be increased or decreased by vote of the Holders of a Majority in
Liquidation Amount of the Common Securities at a meeting of the Holders of the
Common Securities or by written consent in lieu of such meeting; provided,
however, that the number of Trustees shall in no event be less than three; and
provided, further, that:
(i) one Trustee shall be the Delaware Trustee;
(ii) one Trustee shall be the Property Trustee, which, for
so long as this Declaration is required to qualify as
an indenture under the Trust Indenture Act, shall meet
the requirements of applicable law; provided that the
Property Trustee also may serve as Delaware Trustee if
it meets the applicable requirements; and
(iii) at least one Trustee shall be an Administrative
Trustee who shall be an employee or officer of, or
shall be affiliated with, the Sponsor.
Section 5.2. Delaware Trustee; Eligibility.
(a) If required by the Statutory Trust Act, one Trustee (the
"Delaware Trustee") shall be:
(i) a natural person who is a resident of the State of
Delaware; or
(ii) if not a natural person, an entity which has its
principal place of business in the State of Delaware
and otherwise meets the requirements of applicable
law;
provided that if the Property Trustee has its principal place of business in the
State of Delaware and otherwise meets the requirements of applicable law, the
Property Trustee also shall be the Delaware Trustee and Section 3.11 shall have
no application.
(b) The initial Delaware Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890
34
Section 5.3. Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Property Trustee (the "Property Trustee"). The Property Trustee shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any state or
territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Commission to
act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least $50,000,000, and subject to
supervision or examination by federal, state,
territorial or District of Columbia authority. If such
corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above,
then for the purposes of this Section 5.3(a)(ii), the
combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so
published.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 5.6(b).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Property Trustee and the Holders of the Common Securities (as
if it were the obligor referred to in Section 310(b) of the Trust Indenture Act)
shall comply in all respects with the provisions of Section 310(b) of the Trust
Indenture Act.
(d) The Guarantee shall be deemed to be specifically described
in this Declaration for purposes of clause (i) of the first provision contained
in Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890
Attention: Corporate Trust Administration
Section 5.4. Qualifications of Administrative Trustees Generally.
Each Administrative Trustee (each, an "Administrative Trustee")
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more Authorized Officers.
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Section 5.5. Initial Administrative Trustees.
The initial Administrative Trustees shall be Messrs. Joseph R.
Ficalora, Robert Wann and Thomas R. Cangemi, the business address of each of
whom is c/o New York Community Bancorp, Inc., 615 Merrick Avenue, Westbury, New
York 11590.
Section 5.6. Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), the Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) unless a Trust Enforcement Event shall have occurred
and be continuing after the issuance of any
Securities, by vote of the Holders of a Majority in
Liquidation Amount of the Common Securities at a
meeting of the Holders of the Common Securities or by
written consent in lieu of such meeting; and
(iii) if a Trust Enforcement Event shall have occurred and
be continuing after the issuance of the Securities,
with respect to the Property Trustee or the Delaware
Trustee, by vote of Holders of a Majority in
Liquidation Amount of the Preferred Securities at a
meeting of Holders of the Preferred Securities or by
written consent in lieu of such meeting.
(b) The Property Trustee shall not be removed in accordance with
Section 5.6(a) until a successor Trustee possessing the qualifications to act as
Property Trustee under Section 5.3(a) (a "Successor Property Trustee") has been
appointed and has accepted such appointment by written instrument executed by
such Successor Property Trustee and delivered to the Administrative Trustees and
the Sponsor.
(c) The Delaware Trustee shall not be removed in accordance with
Section 5.6(a) until a successor Trustee possessing the qualifications to act as
Delaware Trustee under Section 5.2(a) (a "Successor Delaware Trustee") has been
appointed and has accepted such appointment by written instrument executed by
such Successor Delaware Trustee and delivered to the Administrative Trustees and
the Sponsor.
(d) A Trustee appointed to office shall hold office until a
successor shall have been appointed or until death, dissolution, removal or
resignation. Any Trustee may resign from office (without need for prior or
subsequent accounting) by a written instrument signed by such Trustee and
delivered to the Sponsor, the Trust and the other Trustees, which resignation
shall take effect upon such delivery or upon such later date as is specified
therein; provided, however, that:
(i) no such resignation of the Property Trustee shall be
effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by
written
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instrument executed by such Successor Property
Trustee and delivered to the Trust, the
Administrative Trustees, the Sponsor and the
resigning Property Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to
the Holders; and
(ii) no such resignation of the Delaware Trustee shall be
effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by written
instrument executed by such Successor Delaware Trustee
and delivered to the Trust, the Administrative
Trustees, the Sponsor and the resigning Delaware
Trustee.
(e) The Holders of the Common Securities or, if a Trust
Enforcement Event shall have occurred and be continuing after the issuance of
the Securities, the Holders of the Preferred Securities, shall use their best
efforts to promptly appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 5.6.
(f) If no Successor Property Trustee or Successor Delaware
Trustee, as the case may be, shall have been appointed and accepted appointment
as provided in this Section 5.6 within 60 days after delivery of an instrument
of resignation or removal, the Property Trustee or Delaware Trustee resigning or
being removed, as applicable, may at the expense of the Sponsor petition any
court of competent jurisdiction for appointment of a Successor Property Trustee
or Successor Delaware Trustee, as applicable. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper and prescribe, appoint a
Successor Property Trustee or Successor Delaware Trustee, as the case may be.
(g) No Property Trustee or Delaware Trustee shall be liable for
the acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(h) At the time of resignation or removal of the Property
Trustee or the Delaware Trustee, the Sponsor shall pay to such Trustee any
amounts that may be owed to such Trustee pursuant to Section 9.4.
(i) Any successor Delaware Trustee is authorized to file an
amendment to the Certificate of Trust with the Secretary of State of the State
of Delaware identifying the name and principal place of business of such
successor Delaware Trustee in the State of Delaware.
Section 5.7. Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number
of Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees
is increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Administrative Trustees or, if
there are more than two, a majority of the Administrative Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.6.
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Section 5.8. Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to dissolve, terminate or annul the Trust or terminate
this Declaration. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 5.6, the Administrative
Trustees in office, regardless of their number, shall have all the powers
granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Declaration.
Section 5.9. Meetings.
If there is more than one Administrative Trustee, meetings of the
Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person or telephonic meetings of the Administrative Trustees or
any committee thereof shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 24
hours before such meeting unless such notice is waived by all of the
Administrative Trustees. Notices shall contain a brief statement of the time,
place and anticipated purposes of the meeting. The presence (whether in person
or by telephone) of an Administrative Trustee at a meeting shall constitute a
waiver of notice of such meeting except where an Administrative Trustee attends
a meeting for the express purpose of objecting to the transaction of any
activity on the ground that the meeting has not been lawfully called or
convened. Unless provided otherwise in this Declaration, any action of the
Administrative Trustees may be taken at a meeting by vote of a majority of the
Administrative Trustees present (whether in person or by telephone) and eligible
to vote with respect to such matter; provided that a Quorum is present, or
without a meeting by the unanimous written consent of the Administrative
Trustees. In the event there is only one Administrative Trustee, any and all
action of such Administrative Trustee shall be evidenced by a written consent of
such Administrative Trustee.
Section 5.10. Delegation of Power by the Administrative Trustees.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his power for the purpose of executing any documents which the
Administrative Trustees have power and authority to cause the Trust to execute
pursuant to Section 3.7.
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust, as set
forth herein.
Section 5.11. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee, the Delaware Trustee
or any Administrative Trustee that is not a natural person, as the case may be,
may be merged or converted or with which such Trustee may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which such
Trustee shall be a party, or any Person
38
succeeding to all or substantially all the corporate trust business of such
Trustee, shall be the successor of such Trustee under this Declaration without
the execution or filing of any paper or any further act on the part of any of
the parties hereto; provided that such Person shall be otherwise qualified and
eligible under this Article V; provided, further, that such Person shall file an
amendment to the Certificate of Trust with the Delaware Secretary of State as
contemplated in Section 5.6(i).
ARTICLE VI
THE SECURITIES
Section 6.1. General Provisions Regarding the Securities.
(a) The Administrative Trustees shall issue on behalf of the Trust
one class of preferred securities representing undivided preferred beneficial
interests in the assets of the Trust (the "Preferred Securities") and one class
of common securities representing undivided common beneficial interests in the
assets of the Trust (the "Common Securities").
(i) The Preferred Securities of the Trust shall number
5,500,000 and shall have an aggregate stated
liquidation amount with respect to the assets of the
Trust of $275,000,000, a stated liquidation amount with
respect to the assets of the Trust of $50.00 per
Preferred Security and an accreted value at any time
equal to the Accreted Value. The Preferred Securities
are hereby designated for the purposes of
identification only as the Preferred Securities. The
Preferred Securities Certificates evidencing the
Preferred Securities shall be substantially in the form
of Exhibit A, with such changes and additions thereto
or deletions therefrom as may be required by ordinary
usage, custom or practice.
(ii) The Common Securities of the Trust shall number 170,104
and shall have an aggregate liquidation amount with
respect to the assets of the Trust of $8,505,200, a
stated liquidation amount with respect to the assets of
the Trust of $50.00 per Common Security and an accreted
value at any time equal to the Accreted Value. The
Common Securities are hereby designated for the
purposes of identification only as the Common
Securities. The Common Securities Certificates
evidencing the Common Securities shall be substantially
in the form of Exhibit B, with such changes and
additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice.
(b) The consideration received by the Trust for the issuance of
the Securities shall constitute a contribution to the capital of the Trust and
shall not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and nonassessable beneficial interests in the assets of the Trust.
39
(d) Each Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration, the Guarantee, the Indenture and
the Debentures.
(e) Payment of Distributions on, and any payment of the
Redemption Price upon a redemption of, the Securities shall be made on a Pro
Rata basis based on the liquidation amount of such Securities; provided that if,
on any date on which payment of a Distribution or the Redemption Price is to be
made, an Indenture Event of Default has occurred and is continuing, then such
payment shall not be made on any of the Common Securities, and no other payment
on account of the redemption, liquidation or other acquisition of such Common
Securities shall be made, until all accumulated and unpaid Distributions or
payments of the Redemption Price, as the case may be, on all of the outstanding
Preferred Securities for which Distributions are to be paid or that have been
called for redemption, as the case may be, are fully paid. All funds available
to the Property Trustee shall first be applied to the payment in full in cash of
all Distributions on, or the Redemption Price of, the Preferred Securities then
due and payable.
(f) Neither the issuance of Preferred Securities nor the issuance
of Common Securities, is subject to preemptive or other similar rights to
subscribe for any additional securities. The Holders of the Securities shall not
have any preemptive or similar rights to subscribe for any additional
securities.
Section 6.2. Execution and Authentication.
(a) Each Certificate shall be signed on behalf of the Trust by an
Administrative Trustee by manual or facsimile signature. If any Administrative
Trustee of the Trust who shall have signed any of the Securities shall cease to
be such Administrative Trustee before the Securities so signed shall be
delivered by the Trust, such Securities nevertheless may be delivered as though
the person who signed such Securities had not ceased to be such Administrative
Trustee; and any Securities may be signed on behalf of the Trust by such persons
who, at the actual date of execution of such Security, shall be the
Administrative Trustees of the Trust, although at the date of the execution and
delivery of this Declaration any such person was not such an Administrative
Trustee.
(b) A Preferred Securities Certificate shall not be valid until
authenticated by the manual signature of an authorized signatory of the Property
Trustee. The signature shall be conclusive evidence that such Preferred
Securities Certificate has been authenticated under this Declaration.
(c) Upon a written order of the Trust signed by one
Administrative Trustee, the Property Trustee shall authenticate the Preferred
Securities for original issue. The aggregate number of Preferred Securities
outstanding at any time shall not exceed the aggregate stated liquidation amount
set forth in Section 6.1(a)(i).
(d) The Property Trustee shall have the right to decline to
authenticate and deliver any Securities under this Section if the Property
Trustee, being advised by counsel, determines that such action may not lawfully
be taken or if the Property Trustee in good faith shall determine that such
action would expose the Property Trustee to personal liability to existing
Holders.
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(e) The Property Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Preferred Securities. An authenticating
agent may authenticate Preferred Securities whenever the Property Trustee may do
so. Each reference in this Declaration to authentication by the Property Trustee
includes authentication by such agent. An authenticating agent has the same
rights as the Property Trustee to deal with the Sponsor or an Affiliate.
Section 6.3. Form and Dating.
The Preferred Securities shall be evidenced by one or more
certificates substantially in the form of Exhibit A and the Common Securities
shall be evidenced by one or more certificates substantially in the form of
Exhibit B. The Property Trustee's certificate of authentication shall be
substantially in the form set forth in Exhibit A.
The terms and provisions of the Securities set forth in Exhibits
A and B are part of the terms of this Declaration and to the extent applicable,
the Property Trustee and the Sponsor, by their execution and delivery of this
Declaration, expressly agree to such terms and provisions and to be bound
thereby.
The Certificates shall be printed, lithographed or engraved or may
be produced in any other manner as is reasonably acceptable to the
Administrative Trustees, as evidenced by their execution thereof. The
Certificates may have letters, CUSIP or other numbers, notations or other marks
of identification or designation and such legends or endorsements as the
Administrative Trustees may deem appropriate, or as may be required by law,
stock exchange rule, agreements to which the Trust is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Trust).
Each Security shall be dated the date of its authentication.
Upon the execution and delivery of this Declaration, the Preferred
Securities shall be issued as a component of a Unit, in fully registered form
without Distribution coupons (the "Global Unit Certificate"), substantially in
the form set forth in Exhibit A of the Unit Agreement. The Preferred Securities
also initially shall be issued in the form of one or more global Certificates in
fully registered form without Distribution coupons and with the global legends
specified in Exhibit A (each, a "Global Preferred Security"), substantially in
the form of Exhibit A. The Global Preferred Securities shall be registered in
the name of the Clearing Agency or a nominee of the Clearing Agency, duly
executed by the Trust and authenticated by the Property Trustee, and deposited
on behalf of the purchasers of the Preferred Securities represented thereby with
the Property Trustee, at the Corporate Trust Office, as custodian for the
Clearing Agency. The Global Preferred Securities shall represent such of the
outstanding Preferred Securities as shall be specified in the "Schedule of
Increases or Decreases in Global Preferred Security" attached thereto (or on the
books and records of the Property Trustee and the Clearing Agency or its
nominee). Initially the number of Preferred Securities evidenced by a Global
Preferred Security shall be zero. Thereafter, the number of Preferred Securities
represented by the Global Preferred Securities may from time to time be
increased or decreased by adjustments made on the "Schedule of Increases or
Decreases in Global Preferred Security" attached thereto (or books and records
of the Property Trustee and the Clearing Agency or its nominee) as hereinafter
provided.
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Except as provided in Sections 6.22(f) and 6.22(g), Preferred
Security Beneficial Owners shall not be entitled to receive physical delivery of
definitive, fully registered Preferred Securities Certificates ("Definitive
Preferred Securities").
Section 6.4. The Sponsor's Purchase of the Common Securities.
(a) On the Closing Date, the Sponsor shall purchase all of the
Common Securities then issued by the Trust, in an aggregate liquidation amount
equal to at least 3% of the total capital of the Trust, at such time as the
Preferred Securities are sold and issued. The aggregate stated liquidation
amount of the Common Securities outstanding at any time shall not be less than
3% of the total capital of the Trust.
(b) For so long as the Preferred Securities remain outstanding,
the Sponsor shall covenant:
(i) to maintain, directly or indirectly, 100% ownership of
the Common Securities; provided, however, that any
permitted successor of the Sponsor (in its capacity as
Debenture Issuer) under the Indenture may succeed to
the Sponsor's ownership of such Common Securities;
(ii) to use its reasonable best efforts to cause the Trust
to (a) remain a statutory trust, except in connection
with the distribution of the Debentures to the Holders
in liquidation of the Trust, the redemption of all of
the Securities, or certain mergers, consolidations,
conversions or amalgamations, each as permitted by this
Declaration, (b) not to voluntarily dissolve, wind up,
liquidate or be terminated, except as permitted by this
Declaration and (c) otherwise continue to be classified
as a grantor trust for United States federal income tax
purposes;
(iii) to use its commercially reasonable efforts to ensure
that the Trust will not be an Investment Company
required to be registered under the Investment Company
Act;
(iv) not to take any action that would be reasonably likely
to cause the Trust to be classified as an association
or a publicly traded partnership taxable as a
corporation for United States federal income tax
purposes; and
(v) to use its reasonable best efforts to cause each Holder
to be treated as owning an undivided beneficial
interest in the assets of the Trust.
Section 6.5. Distributions.
(a) Holders shall be entitled to receive Distributions that shall
be payable at a rate per annum of 6.00% (the "Coupon Rate") of the liquidation
preference of $50 per Security from and including ___________, 2002 to, but
excluding, the Remarketing Date, and at the Reset Rate of the Accreted Value of
the Security on the Remarketing Date to, but excluding, the date of
42
redemption. At all times, the Distribution rate shall correspond to the interest
rate on the Debentures. The amount of a Distribution payable shall be computed:
(i) for any full 90-day quarterly Distribution period, on
the basis of a 360-day year consisting of twelve 30-day
months;
(ii) for any period shorter than a full 90-day quarterly
Distribution period, on the basis of a 30-day month;
and
(iii) for any period shorter than a 30-day month, on the
basis of the actual number of days elapsed in the
30-day month.
Subject to Section 6.1(e), Distributions shall be made on the Securities on a
Pro Rata basis. Distributions shall be payable on the Distribution Dates only to
the extent that payments are made to the Trust in respect of the Debentures held
by the Property Trustee and to the extent the Trust has funds available for the
payment of such Distributions in the Property Account.
(b) Distributions on the Securities shall accumulate from the
date of original issue, shall be cumulative and shall be payable quarterly in
arrears on February 1, May 1, August 1 and November 1 of each year (each, a
"Distribution Date"), commencing on February 1, 2003, when, as and if available
for payment, except as otherwise provided in this Declaration. Interest not paid
on the Debentures on the scheduled Interest Payment Dates shall accrue and
compound quarterly at the Coupon Rate of the aggregate principal amount or the
Reset Rate of the Accreted Value of the Debentures on the Remarketing Date, as
applicable, and, as a result, Distributions not paid on the scheduled
Distribution Dates shall accumulate and compound quarterly at the Coupon Rate of
the aggregate stated liquidation amount or the Reset Rate of the Accreted Value
of the Preferred Securities on the Remarketing Date, as applicable ("Compounded
Distributions"). The term "Distribution" shall mean ordinary quarterly
distributions together with any Compounded Distributions.
(c) As long as no Indenture Event of Default has occurred and is
continuing and as long as a Failed Remarketing has not occurred, the Debenture
Issuer has the right under the Indenture to defer payments of interest on the
Debentures by extending the interest payment period, at any time and from time
to time, on the Debentures for a period not exceeding 20 consecutive quarters
(each, an "Extension Period"), during which Extension Period no interest shall
be due and payable on the Debentures; provided that no Extension Period shall
end on a date other than an Interest Payment Date or extend beyond the stated
maturity of the Debentures. Upon the occurrence of a Failed Remarketing, any
such Extension Period shall terminate and interest shall be payable in cash on
the next Interest Payment Date. As a consequence of such deferral, Distributions
also shall be deferred. Despite such deferral, interest on the Debentures shall
continue to accrue with additional interest thereon (to the extent permitted by
applicable law) and, as a result, Distributions shall continue to accumulate
with additional Distributions thereon (to the extent permitted by applicable
law) at the Coupon Rate of the aggregate principal amount or at the Reset Rate
of the Accreted Value on the Remarketing Date, as the case may be, compounded
quarterly during any such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may further defer payments of interest by
further extending such Extension Period; provided that such Extension Period,
together with all such previous and further extensions of such Extension Period,
may not exceed 20 consecutive quarters or extend beyond the stated maturity date
of the Debentures. Upon the termination of
43
any Extension Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above requirements.
(d) Distributions on the Securities shall be payable to the
Holders thereof as their names appear in the books and records of the Trust at
the close of business on the relevant Regular Record Dates; provided that
Distributions payable on the Remarketing Settlement Date shall be payable to the
Holders thereof as their names appear in the books and records of the Trust at
the close of business on the Special Record Date. If the Preferred Securities
are represented by one or more Global Preferred Securities, the relevant Regular
Record Dates shall be the close of business on the Business Day preceding the
corresponding Distribution Date, unless a different Regular Record Date is
established or provided for the corresponding Interest Payment Date on the
Debentures. If the Preferred Securities are not represented by one or more
Global Preferred Securities, the relevant Regular Record Dates for the Preferred
Securities shall be at least one Business Day prior to the corresponding
Distribution Dates, or such other dates as may be selected by the Administrative
Trustees. The record dates for the Common Securities shall be the same as the
record dates for the Preferred Securities. At all times, the Distribution Dates
shall correspond to the Interest Payment Dates on the Debentures.
Distributions payable on any Securities that are not punctually
paid on any Distribution Date, as a result of the Debenture Issuer having failed
to make a payment under the Debentures, shall cease to be payable to the Person
in whose name such Securities are registered on the relevant record date, and
such defaulted Distribution instead shall be payable to the Person in whose name
such Securities are registered on the special record date or other specified
date determined in accordance with the Indenture for payment of the
corresponding defaulted interest on the Debentures.
(e) If any date on which a Distribution is payable on the
Securities is not a Business Day, payment of the Distribution payable on such
date will be made on the next day that is a Business Day (and without any
additional Distribution or other payment in respect of any such delay), except
that if such Business Day is in the next calendar year, such payment shall be
made on the immediately preceding Business Day with the same force and effect as
if made on the date such payment was originally payable.
(f) If and to the extent that the Debenture Issuer makes a
payment of principal of and premium, if any, and interest on the Debentures held
by the Property Trustee (the amount of any such payment being a "Payment
Amount"), the Property Trustee shall and is directed, to the extent funds are
available for that purpose, to make a distribution of the Payment Amount to the
Holders on a Pro Rata basis, subject to Section 6.1(e).
(g) In the event that there is any money or other property held
by or for the Trust that is not accounted for hereunder, such property shall be
distributed on a Pro Rata basis among the Holders subject to 6.1(e).
Section 6.6. Remarketing.
(a) In connection with a Remarketing of the Preferred
Securities:
(i) in connection with a Remarketing upon an Optional
Redemption Remarketing Event or a Legal Cause
Remarketing Event, the Accreted Value of the Debentures
as of the end of the day on the
44
day next preceding the Remarketing Date shall become
due on the date which is 180 days following the
Remarketing Date, and, as a result, the Accreted Value
of the Securities as of the end of the day on the day
next preceding the Remarketing Date shall be redeemed
on the date which is 180 days following the Remarketing
Date;
(ii) beginning on the Remarketing Date, the rate of interest
per annum on the Accreted Value of the Debentures shall
become the Reset Rate on the Accreted Value of the
Securities established in the Remarketing of the
Preferred Securities, and, as a result, the
Distribution rate per annum on the Accreted Value of
the Securities shall become the Reset Rate established
in the Remarketing of the Preferred Securities;
(iii) on the Remarketing Settlement Date, interest accrued
and unpaid on the Debentures from and including the
immediately preceding Interest Payment Date to, but
excluding, the Remarketing Settlement Date shall be
payable to the holders of the Debentures on the Special
Record Date, and, as a result, Distributions
accumulated and unpaid on the Securities from and
including the immediately preceding Distribution Date
to, but excluding, the Remarketing Settlement Date
shall be payable to the Holders of the Securities on
the Special Record Date;
(iv) in connection with a Remarketing upon an Optional
Redemption Remarketing Event or a Legal Cause
Remarketing Event, the Sponsor shall be obligated to
redeem the Warrants on the Remarketing Settlement Date
at a redemption price per Warrant equal to the Warrant
Value as of the end of the day on the day next
preceding the Remarketing Date; and
(v) on and after the Remarketing Date, the Warrants shall
be exercisable at the Exercise Price.
(b) The proceeds from the Remarketing of the Preferred
Securities shall be paid to the selling Holders; provided that upon an Optional
Redemption Remarketing Event or a Legal Cause Remarketing Event, the proceeds
from the Remarketing of the Preferred Securities that are held pursuant to the
Unit Agreement for which the holders of such Units have elected to exercise
their Warrants shall be paid directly to the Warrant Agent to satisfy in full
the Exercise Price of the Warrants held by such holders with any excess proceeds
being paid to the selling holders.
(c) In connection with a Remarketing of the Preferred Securities
and at any time thereafter, a purchaser may exchange its Preferred Securities
for its Pro Rata share of Debentures. In such event, the Administrative Trustees
shall cause Debentures held by the Property Trustee, having an aggregate
Accreted Value equal to the aggregate Accreted Value of the Preferred Securities
purchased by such purchaser and with accrued and unpaid interest equal to the
accumulated and unpaid Distributions on the Preferred Securities purchased by
such purchaser and having the same record date for payment as the Preferred
Securities, to be
45
distributed to such purchaser in exchange for such Holders' pro rata interest in
the Trust. In such event, the Debentures held by the Trust shall decrease by the
amount of Debentures delivered to the purchaser of Preferred Securities.
(d) Upon the occurrence of an Optional Redemption Remarketing
Event, the Sponsor shall cause a Remarketing of the Preferred Securities and
select a Remarketing Date; provided, however, that the following conditions
precedent are satisfied:
(i) as of the date on which the Sponsor elects to cause a
Remarketing of the Preferred Securities and on the
Remarketing Date, no Trust Enforcement Event or
deferral of Distributions to Holders of the Preferred
Securities shall have occurred and be continuing;
(ii) as of the date on which the Sponsor elects to cause a
Remarketing of the Preferred Securities and on the
Remarketing Date, the Warrant Requirements shall have
been satisfied; and
(iii) on the Remarketing Date, the Legal Requirements shall
have been satisfied.
The settlement of the Remarketing shall occur on the Remarketing Settlement
Date; provided, however, that the following conditions precedent are satisfied
on the Remarketing Settlement Date:
(A) the Warrant Requirements shall be satisfied; and
(B) pursuant to the Warrant Agreement, a redemption
of the Warrants of those holders who have not
elected to exercise their Warrants prior to or on
such date shall have been consummated.
If any of the foregoing conditions precedent are not satisfied, the Remarketing
of the Preferred Securities cannot occur and the contemporaneous redemption of
Warrants shall be canceled; provided, however, that if:
(x) the Remarketing cannot occur because of a failure to satisfy
either the Warrant Requirements or the Legal Requirements as
of or on the relevant date or dates; and
(y) the Sponsor is using its best efforts to satisfy such
Requirements;
the Sponsor shall have the right to cause a Remarketing of the Preferred
Securities on a subsequent date which is no later than the Expiration Date;
provided, however, that all applicable requirements and conditions precedents
(including the timely occurrence of an Optional Redemption Remarketing Event)
are satisfied.
(e) Upon the occurrence of a Legal Cause Remarketing Event, the
Sponsor shall cause a Remarketing of the Preferred Securities and select a
Remarketing Date; provided, however, that the following conditions precedent are
satisfied:
46
(i) as of the date on which the Sponsor elects to cause a
Remarketing of the Preferred Securities and on the
Remarketing Date, no Trust Enforcement Event shall have
occurred and be continuing;
(ii) as of the date on which the Sponsor elects to cause a
Remarketing of the Preferred Securities and on the
Remarketing Date, the Warrant Requirements shall have
been satisfied; and
(iii) on the Remarketing Date, the Legal Requirements shall
have been satisfied.
The settlement of the Remarketing shall occur on the Remarketing Settlement
Date; provided, however, that the following conditions precedent are satisfied
on the Remarketing Settlement Date:
(A) the Warrant Requirements shall be satisfied; and
(B) a redemption of the Warrants of those holders who
have not elected to exercise their Warrants prior
to or on such date shall have been consummated
pursuant to the Warrant Agreement.
If any of the foregoing conditions precedent are not satisfied, the Remarketing
cannot occur and the contemporaneous redemption of Warrants shall be canceled;
provided, however, that if:
(x) the Remarketing cannot occur because of a failure to satisfy
either the Warrant Requirements or the Legal Requirements as
of or on the relevant date or dates; and
(y) the Sponsor is using its best efforts to satisfy such
Requirements;
the Sponsor shall have the right to cause a Remarketing of the Preferred
Securities on a subsequent date which is no later than the Expiration Date;
provided, however, that all applicable requirements and conditions precedents
(including the timely occurrence of a Legal Cause Remarketing Event) are
satisfied.
(f) On the Maturity Remarketing Date, a Remarketing of the
Preferred Securities shall occur; provided, however, that on such date, the
Legal Requirements (to the extent applicable) shall have been satisfied.
(g) If, for any reason, a Remarketing of the Preferred Securities
does not occur on the Maturity Remarketing Date, the Administrative Trustees
shall give notice thereof to all Holders of Preferred Securities (whether or not
held pursuant to the Unit Agreement) prior to the close of business on the
Business Day following the Maturity Remarketing Date. In such event:
(i) the rate of interest per annum on the Accreted Value of
the Debentures (which, on the Maturity Remarketing Date,
shall be equal to the principal amount of the Debentures)
shall become
47
11.10%, and, as a result, the rate of Distribution per
annum on the Accreted Value of the Securities (which,
on the Maturity Remarketing Date, shall be equal to the
liquidation preference of the Securities) shall become
11.10%;
(ii) the Accreted Value of the Debentures (and, as a result,
the Accreted Value of the Securities) shall be due and
payable on the day which is 180 days after the Maturity
Remarketing Date; and
(iii) pursuant to the Indenture, the Debenture Issuer no
longer shall have the option to defer payments of
interest on the Debentures.
(h) Upon the occurrence of an Optional Redemption Remarketing Event
or a Legal Cause Remarketing Event, or upon the Maturity Remarketing Date, as
long as the Preferred Securities are evidenced by Global Preferred Securities
deposited with the Clearing Agency, the Sponsor shall request, not later than
three nor more than 18 Business Days prior to the Remarketing Date, that the
Clearing Agency notify the Holders of the Preferred Securities of the
Remarketing of the Preferred Securities and of the procedures that must be
followed if such Holder of Preferred Securities wishes to elect not to
participate in the Remarketing of the Preferred Securities.
(i) Upon the occurrence of a Remarketing Event, all of the
Preferred Securities (excluding the Preferred Securities as to which the Holders
thereof have elected not to participate in the Remarketing) shall be remarketed
by the Remarketing Agent. Not later than 5:00 p.m. (New York City time) on the
Business Day preceding the Remarketing Date, each Holder of Preferred Securities
may elect not to have the Preferred Securities held by such Holder remarketed in
the Remarketing. Holders of Preferred Securities that are not held pursuant to
the Unit Agreement shall give such notice to the Property Trustee, and Holders
of Preferred Securities that are held pursuant to the Unit Agreement shall give
such notice to the Unit Agent. Holders of Preferred Securities that do not give
notice of their intention not to participate in the Remarketing shall be deemed
to have consented to the disposition of their Preferred Securities in the
Remarketing. Any such notice shall be irrevocable and may not be conditioned
upon the level at which the Reset Rate is established in the Remarketing.
Not later than 5:00 p.m. (New York City time) on the Business Day preceding
the Remarketing Date, the Property Trustee and the Unit Agent, as applicable,
based on the notices received by it prior to such time, shall notify the Trust,
the Sponsor and the Remarketing Agent of the number of Preferred Securities to
be tendered for purchase in the Remarketing.
(j) The right of each Holder to have Preferred Securities tendered
for purchase shall be limited to the extent that:
(i) the Remarketing Agent conducts a Remarketing pursuant
to the terms of the Remarketing Agreement;
(ii) the Remarketing Agent is able to find a purchaser or
purchasers for the Preferred Securities deemed
tendered; and
(iii) such purchaser or purchasers deliver the purchase price
therefor to the Remarketing Agent.
48
(k) On the Remarketing Date, the Remarketing Agent shall use
commercially reasonable efforts to remarket the Preferred Securities deemed
tendered for purchase at a price no less than 100% of the aggregate Accreted
Value as of the end of the day on the day next preceding the Remarketing Date.
(l) If, as a result of the efforts described in 6.6(k), the
Remarketing Agent determines that it will be able to remarket all of the
Preferred Securities deemed tendered for purchase at the purchase price set
forth in Section 6.6(k) prior to 4:00 p.m. (New York City time) on the
Remarketing Date, the Remarketing Agent shall determine the Reset Rate, which
shall be the rate per annum (rounded to the nearest one-thousandth (0.001) of 1%
per annum) that the Remarketing Agent determines, in its sole judgment, to be
the lowest rate per annum that will enable it to remarket all of the Preferred
Securities deemed tendered for Remarketing.
(m) If none of the Holders of the Preferred Securities or the
holders of the Units elects to have their Preferred Securities remarketed in the
Remarketing, the Reset Rate shall equal the rate determined by the Remarketing
Agent, in its sole discretion, as the rate that would have been established had
a Remarketing been held on the Remarketing Date, and the related modifications
to the other terms of the Preferred Securities and to the terms of the
Debentures and the Warrants shall be effective as of the Remarketing Date.
(n) If, by 4:00 p.m. (New York City time) on the Remarketing Date,
the Remarketing Agent is unable to remarket all of the Preferred Securities
deemed tendered for purchase, a "Failed Remarketing" shall be deemed to have
occurred and the Remarketing Agent shall so advise by telephone (promptly
confirmed in writing) the Clearing Agency, the Property Trustee, the Indenture
Trustee and the Administrative Trustees on behalf of the Trust and the Sponsor.
The Administrative Trustees shall then give notice of the Failed Remarketing to
the Sponsor and the Holders of the Preferred Securities prior to the close of
business on the Business Day following the Failed Remarketing Date. In the event
of a Failed Remarketing:
(i) the Accreted Value of the Debentures as of the end of
the day on the day next preceding the Failed
Remarketing Date shall become due on the date which is
180 days following the Failed Remarketing Date, and, as
a result, the Accreted Value of the Securities as of
the end of the day on the day next preceding the Failed
Remarketing Date shall be redeemed on the date which is
180 days following the Failed Remarketing Date;
(ii) beginning on the Failed Remarketing Date, the rate of
interest per annum on the Accreted Value of the
Debentures shall become 11.10%, and, as a result, the
rate of Distribution per annum on the Accreted Value of
the Securities shall become 11.10%; and
(iii) pursuant to the Indenture, the Debenture Issuer no
longer shall have the option to defer payments of
interest on the Debentures.
Notwithstanding a Failed Remarketing, subject to the satisfaction of the
Legal Requirements, the Warrants shall be redeemed at the Warrant Value and a
holder of Warrants shall have the option to exercise its Warrants in lieu of
such redemption, as provided in the Unit Agreement and the Warrant Agreement.
49
(o) By approximately 4:30 p.m. (New York City time) on the
Remarketing Date, provided that there has not been a Failed Remarketing, the
Remarketing Agent shall advise, by telephone (promptly confirmed in writing):
(i) the Clearing Agency, the Property Trustee, the
Indenture Trustee, the Trust and the Sponsor of the
Reset Rate determined in the Remarketing and the number
of Preferred Securities sold in the Remarketing;
(ii) each purchaser (or the Clearing Agency Participant
thereof) of the Reset Rate and the number of Preferred
Securities such purchaser is to purchase; and
(iii) each purchaser to give instructions to its Clearing
Agency Participant to pay the purchase price on the
Remarketing Settlement Date in same day funds against
delivery of the Preferred Securities purchased through
the facilities of the Clearing Agency.
(p) In accordance with the Clearing Agency's normal procedures, on
the Remarketing Settlement Date, the transactions described above with respect
to each Preferred Security deemed tendered for purchase and sold in the
Remarketing shall be executed through the Clearing Agency, and the accounts of
the respective Clearing Agency Participants shall be debited and credited and
such Preferred Securities delivered by book entry as necessary to effect
purchases and sales of such Preferred Securities. The Closing Agency shall make
payment in accordance with its normal procedures.
(q) If any Holder of the Preferred Securities selling such
Preferred Securities (or any holder of Units selling the Preferred Securities
that are held pursuant to the Unit Agreement) in the Remarketing fails to
deliver such Preferred Securities, the Clearing Agency Participant of such
selling holder and of any other Person that was to have purchased Preferred
Securities in the Remarketing may deliver to any such other Person a number of
Preferred Securities that is less than the number of Preferred Securities that
otherwise was to be purchased by such Person. In such event, the number of
Preferred Securities to be so delivered shall be determined by such Clearing
Agency Participant, and delivery of such lesser number of Preferred Securities
shall constitute good delivery.
(r) The Remarketing Agent is not obligated to purchase any
Preferred Securities that otherwise would remain unsold in the Remarketing.
Neither the Trust, any Trustee, the Sponsor nor the Remarketing Agent shall be
obligated in any case to provide funds to make payment upon tender of the
Preferred Securities for Remarketing.
(s) Under the Remarketing Agreement, the Sponsor, in its capacity
as Debenture Issuer, shall be liable for, and shall pay, any and all costs and
expenses incurred in connection with the Remarketing, and the Trust shall not
have any liabilities for such costs and expenses.
(t) The tender and settlement procedures set in this Section 6.6,
including provisions for payment by purchasers of the Preferred Securities in
the Remarketing, shall be subject to modification to the extent required by the
Clearing Agency or if the book-entry system
50
is no longer available for the Preferred Securities at the time of the
Remarketing, to facilitate the tendering and remarketing of the Preferred
Securities in definitive form. In addition, the Remarketing Agent may modify the
settlement procedures set forth herein in order to facilitate the settlement
process.
Section 6.7. Limited Right to Require Exchange of Preferred Securities and
Repurchase of Debentures.
(a) Upon the exercise of Warrants by a holder of Units on a date
other than a Remarketing Settlement Date, such Holder shall have the right (the
"Repurchase Right"), on the next Special Distribution Date that is no less than
180 days following the exercise date of such Warrants, to require the Trust to
exchange the Preferred Securities related to such exercised Warrants for
Debentures having a principal amount at maturity equal to the liquidation
preference of such Preferred Securities on such exchange date plus accumulated
and unpaid Distributions (including deferred Distributions) to such date, and to
require the Debenture Issuer to repurchase such Debentures on the applicable
Special Distribution Date.
(b) To exercise its Repurchase Right, a Unit holder shall:
(i) provide the Administrative Trustees, the Exchange Agent
and the Debenture Issuer with notice of its election to
exercise its Repurchase Right no less than 30 days
prior to the Special Distribution Date on which such
repurchase is to be effected;
(ii) specify in such notice the number of Preferred
Securities to be exchanged for Debentures by the Trust;
and
(iii) certify to the Trust, the Administrative Trustees and
the Debenture Issuer that such holder (A) has exercised
the Warrants that are held pursuant to the Unit
Agreement having an Exercise Price no less than the
liquidation preference of the Preferred Security sought
to be exchanged, and (B) is the beneficial owner of the
Preferred Securities to be exchanged.
(c) No less than three Business Days prior to the applicable
Special Distribution Date:
(i) if the Preferred Securities to be exchanged are
represented by a Global Preferred Security, the
Property Trustee shall make, in accordance with the
instructions of the Exchange Agent, the necessary
endorsement to the "Schedule of Increases or Decreases
in Global Preferred Security" attached to the Global
Preferred Security to reduce the amount of Preferred
Securities represented thereby and shall instruct the
Indenture Trustee to transfer to the Exchange Agent a
corresponding principal amount of Debentures; and
(ii) if the Preferred Securities to be exchanged are
represented by Definitive Preferred Securities, (x) the
Holder of such Preferred Securities shall present such
Definitive Preferred Securities to
51
the Property Trustee for cancellation and the Property
Trustee shall so notify the Registrar and (y) the
Property Trustee shall instruct the Indenture Trustee
to deliver to such Holder, definitive Debentures having
a principal amount at maturity equal to the liquidation
preference of the cancelled Preferred Securities of
such Holder.
(d) On the applicable Special Distribution Date, the Debenture
Issuer shall repurchase, pursuant to the Indenture, the Debentures which were
the subject of an exchange notice received by the Debenture Issuer pursuant to
Section 6.7(b) at the Repurchase Price.
Section 6.8. Change of Control Right to Require Exchange of Preferred Securities
and Repurchase of Debentures.
(a) Upon the occurrence of a Change of Control, each Holder of a
Preferred Security shall have the right (a "Change of Control Repurchase Right")
to exchange any or all of such Holder's Preferred Securities for Debentures
having an Accreted Value on the date of exchange equal to the Accreted Value of
such Preferred Securities on such exchange date, and to require the Debenture
Issuer to repurchase such Debentures on the Change of Control Repurchase Date.
(b) Within 30 days after the occurrence of a Change of Control, the
Sponsor shall give notice to each Holder of a Preferred Security and the
Property Trustee of the transaction that constitutes the Change of Control,
identifying such transaction as constituting a Change of Control and setting
forth the resulting repurchase right (the date of such notice, the "Change of
Control Notice Date").
(c) To exercise its Change of Control Repurchase Right, a Holder of
Preferred Securities shall:
(i) provide the Trust, the Debenture Issuer, the Property
Trustee and the Exchange Agent with irrevocable written
notice of its election to exercise its Change of
Control Repurchase Right no earlier than 180 days and
no later than 210 days following the Change of Control
Notice Date; and
(ii) specify in such notice the number of Preferred
Securities to be exchanged for Debentures by the Trust.
(d) No less than three Business Days prior to the Change of Control
Repurchase Date:
(i) if the Preferred Securities to be exchanged are
represented by a Global Preferred Security, the
Property Trustee shall make, in accordance with the
instructions of the Exchange Agent, the necessary
endorsement to the "Schedule of Increases or Decreases
in Global Preferred Security" attached to the Global
Preferred Security to reduce the amount of Preferred
Securities represented thereby and shall instruct the
Indenture Trustee to
52
transfer to the Exchange Agent a corresponding Accreted
Value of Debentures; and
(ii) if the Preferred Securities to be exchanged are
represented by Definitive Preferred Securities, (x) the
Holder of such Preferred Securities shall present such
Definitive Preferred Securities to the Property Trustee
for cancellation and the Property Trustee shall so
notify the Registrar and (y) the Property Trustee shall
instruct the Indenture Trustee to deliver to such
Holder, definitive Debentures having an Accreted Value
equal to the Accreted Value of the cancelled Preferred
Securities of such Holder.
(e) On the Change of Control Repurchase Date, the Debenture Issuer
shall repurchase, pursuant to the Indenture, the Debentures which were the
subject of an exchange notice received by the Debenture Issuer pursuant to
Section 6.8(c) at the Change of Control Repurchase Price.
Section 6.9. Redemption.
(a) Except as provided in Sections 6.7 and 6.8, upon the repayment
of the Debentures held by the Trust, in whole or in part, whether at stated
maturity (as adjusted in connection with a Remarketing, if applicable) or
otherwise, the proceeds from such repayment shall be simultaneously applied by
the Property Trustee to redeem a Like Amount of the Securities at a redemption
price (i) in the absence of a Remarketing, equal to $50, plus accumulated and
unpaid Distributions on the Securities through the date of redemption or (ii) in
the event of a successful Remarketing prior to maturity, the Securities'
Accreted Value (the "Redemption Price"). The Redemption Price shall be payable
on the date of redemption (the "Redemption Date") only to the extent that the
Trust has sufficient funds available for the payment of such Redemption Price.
(b) If the Debentures are repaid in part, the Securities shall be
redeemed in part. Except as provided in Section 6.13, the proceeds from such
repayment of Debentures shall be allocated on a Pro Rata basis to the redemption
of the Securities.
(c) The procedure with respect to redemptions of Securities shall
be as follows:
(i) Notice of any redemption of Securities (a "Redemption
Notice"), which notice shall be irrevocable, shall be
given by the Trust by mail to each Holder of Securities
within 5 Business Days of the Redemption Date, which
shall be the date fixed for repayment of the
Debentures. A Redemption Notice shall be deemed to be
given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders. No
defect in the Redemption Notice or in the mailing of
the redemption Notice with respect to any Holder shall
affect the validity of the redemption proceedings with
respect to any other Holder.
53
(ii) Each Redemption Notice shall be prepared by the
Administrative Trustees and delivered to the Property
Trustee, which will then send such Redemption Notice on
behalf of the Trust to:
(A) in respect of the Preferred Securities, the
Clearing Agency or its nominee (or any successor
Clearing Agency or its nominee) if the Global
Preferred Securities have been issued or, the
Holders thereof if Definitive Preferred Securities
have been issued, and
(B) in respect of the Common Securities, the Holder
(or Holders) thereof.
(iii) Once the Trust gives a Redemption Notice:
(A) with respect to Preferred Securities issued in
book-entry form, by 12:00 noon (New York City
time) on the Redemption Date of such Preferred
Securities; provided that the Debenture Issuer has
paid the Property Trustee a sufficient amount of
cash in connection with the related repayment of
the Debentures by 10:00 a.m. (New York City time)
on such Redemption Date, the Property Trustee
shall deposit irrevocably with the Clearing Agency
or its nominee (or successor Clearing Agency or
its nominee) funds sufficient to pay the
applicable Redemption Price with respect to such
Global Preferred Securities and shall give the
Clearing Agency irrevocable instructions and
authority to pay the Redemption Price to the
relevant Clearing Agency Participants, and
(B) with respect to Preferred Securities issued in
definitive form and Common Securities, by 12:00
noon (New York City time) on the Redemption Date
of such Securities, provided that the Debenture
Issuer has paid the Property Trustee a sufficient
amount of cash in connection with the related
repayment of the Debentures by 10:00 a.m. (New
York City time) on such Redemption Date, the
Property Trustee shall deposit irrevocably with
the Paying Agent such funds sufficient to pay the
applicable Redemption Price with respect to such
Definitive Preferred Securities and Common
Securities and shall give the Paying Agent
irrevocable instructions and authority to pay the
Redemption Price to the relevant Holders upon
surrender of their Certificates evidencing their
Securities.
(iv) If a Redemption Notice shall have been given and funds
deposited as required, then, immediately prior to the
close of business on the Redemption Date, Distributions
shall cease to
54
accumulate on the Securities called for redemption
and all rights of Holders of Securities called for
redemption, except the right of such Holders to
receive the Redemption Price (but without interest
on such Redemption Price), shall cease, and such
Securities shall cease to be outstanding.
(v) Payment of accumulated and unpaid Distributions on
the Redemption Date of the Securities shall be
subject to the rights of Holders on the close of
business on a Regular Record Date in respect of a
Distribution Date occurring prior to or on such
Redemption Date.
(vi) If any Redemption Date is not a Business Day,
payment of the Redemption Price payable on such
Redemption Date shall be made on the next day that
is a Business Day (and without any interest or
other payment in respect of any such delay) except
that, if such next Business Day falls in the next
calendar year, such payment shall be made on the
immediately preceding Business Day, in each case
with the same force and effect as if made on the
date such payment was originally payable.
(vii) If payment of the Redemption Price in respect of
any Securities called for redemption is improperly
withheld or refused and not paid either by the
Property Trustee or by the Sponsor pursuant to the
Guarantee, Distributions on such Securities shall
continue to accumulate from the redemption date
originally established by the Trust to the date
such Redemption Price is actually paid, in which
case the actual payment date shall be the
Redemption Date for purposes of calculating the
Redemption Price.
(viii) Subject to the foregoing and applicable law
(including, without limitation, United States
federal securities laws and banking laws), the
Sponsor or any of its subsidiaries may at any time
and from time to time purchase outstanding
Preferred Securities by tender, in the open market
or by private agreement.
Section 6.10. Distribution of Debentures in Exchange for Securities Upon the
Occurrence of a Special Event.
(a) If at any time either a Tax Event or an Investment Company
Act Event occurs (each, a "Special Event") and certain conditions set forth in
Section 6.10(b) are satisfied, the Administrative Trustees may dissolve the
Trust and, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, cause the Debentures held by the Property Trustee to
be distributed to the Holders in liquidation of such Holders' interests in the
Trust on a Pro Rata basis, upon not less than 30 nor more than 60 days notice,
within the 90 days following the occurrence of such Special Event (the "90-Day
Period"), and, simultaneous with such distribution, to cause a Like Amount of
the Securities to be exchanged by the Trust on a Pro Rata basis.
55
(b) The dissolution of the Trust and distribution of the
Debentures pursuant to Section 6.10(a) shall be permitted only upon satisfaction
of the following three conditions:
(i) the receipt by the Administrative Trustees of an
Opinion of Counsel, rendered by an independent law
firm having a recognized national tax practice, to
the effect that the Holder shall not recognize any
gain or loss for United States federal income tax
purposes as a result of the dissolution of the
Trust and the distribution of the Debentures (a "No
Recognition Opinion"); provided that if a Special
Event occurs and the Administrative Trustees are
informed by an independent counsel that such
counsel cannot deliver a No Recognition Opinion to
the Trust, and thus a dissolution of the Trust and
distribution of the Debentures shall not be
permitted, the Debenture Issuer shall have the
right to cause a Remarketing of the Preferred
Securities as set forth in Section 6.6 within the
90-Day Period;
(ii) neither the Trust nor the Debenture Issuer being
able to eliminate, which elimination shall be
complete within the 90-Day Period, such Special
Event by taking some ministerial action (such as
filing a form, making an election or pursuing some
other reasonable measure) that:
(A) has no material adverse effect on the Trust,
the Debenture Issuer or the Holders; or
(B) does not subject any of them to more than de
minimis regulatory requirements; and
(iii) the receipt by the Administrative Trustees of the
prior written consent of the Debenture Issuer.
(c) Notice of any distribution of Debentures in exchange for
the Securities (a "Debenture Distribution Notice"), which notice shall be
irrevocable, shall be given by the Trust by mail to each Holder of Securities
not fewer than 30 nor more than 60 days before the date of distribution of the
Debentures. A Debenture Distribution Notice shall be deemed to be given on the
day such notice is first mailed by first-class mail, postage prepaid, to
Holders. No defect in the Debenture Distribution Notice or in the mailing of the
Debenture Distribution Notice with respect to any Holder shall affect the
validity of the exchange proceedings with respect to any other Holder.
Each Debenture Distribution Notice shall be prepared by the
Administrative Trustees and delivered to the Property Trustee, which will then
send such Debenture Distribution Notice on behalf of the Trust to:
(i) in respect of the Preferred Securities, the
Clearing Agency or its nominee (or any successor
Clearing Agency or its nominee) if the Global
Preferred Securities have been issued or, the
Holders thereof if Definitive Preferred Securities
have been issued, and
56
(ii) in respect of the Common Securities, the Holder (or
Holders) thereof.
(d) On and from the date fixed by the Administrative Trustees
for any distribution of Debentures and liquidation of the Trust:
(i) the Securities no longer shall be deemed to be
outstanding;
(ii) the Clearing Agency or its nominee (or any
successor Clearing Agency or its nominee), as the
Holder of the Preferred Securities, will receive a
registered global certificate or certificates
representing the Debentures to be delivered upon
such distribution; and
(iii) any certificates representing Securities not held
by the Clearing Agency or its nominee (or any
successor Clearing Agency or its nominee) shall be
deemed to represent Debentures having an aggregate
principal amount equal to the aggregate liquidation
amount of such Securities and bearing accrued and
unpaid interest in an amount equal to the
accumulated and unpaid Distributions on such
Securities, until such certificates are presented
for cancellation, at which time the Debenture
Issuer shall issue, and the Indenture Trustee shall
authenticate, a certificate representing such
Debentures.
(e) In the event of a dissolution of the Trust and a
distribution of the Debentures, pursuant to the Indenture, the Debenture Issuer
shall have the same rights, and shall be subject to the same terms and
conditions, to cause a Remarketing of the Debentures as the Sponsor has and is
subject to under Section 6.6 to cause a Remarketing of the Preferred Securities.
Section 6.11. Voting Rights of the Preferred Securities.
(a) Except as provided under this Section 6.11 and 11.1 and as
otherwise required by the Statutory Trust Act, this Declaration and other
applicable law, the Holders of the Preferred Securities shall have no voting
rights.
(b) Subject to the requirement of the Property Trustee
obtaining a tax opinion in certain circumstances set forth in Section 6.11(d),
the Holders of a Majority in Liquidation Amount of the Preferred Securities,
voting separately as a class, shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Property
Trustee, or to direct the exercise of any trust or power conferred upon the
Property Trustee under this Declaration, including the right to direct the
Property Trustee, as holder of the Debentures, to:
(i) exercise the remedies available to it under the
Indenture;
(ii) consent to any amendment or modification of the
Indenture or the Debentures where such consent is
required; or
57
(iii) waive any past default and its consequences that
are waivable under Section 2.11 of the First
Supplemental Indenture;
provided, however, that if an Indenture Event of Default has occurred and is
continuing, the Holders of at least 25% of the aggregate liquidation amount of
the Preferred Securities may direct the Property Trustee to declare the
principal of and premium, if any, and interest on the Debentures due and
payable; provided, further, that where a consent or action under the Indenture
would require the consent or act of the Holders of a Super Majority of the
aggregate principal amount of Debentures affected thereby, the Property Trustee
may give such consent or take such action only at the written direction of the
Holders of the percentage of the aggregate liquidation amount of the Preferred
Securities which is at least equal to the percentage required under the
Indenture.
(c) If the Property Trustee fails to enforce its rights under
the Debentures after a Holder of Preferred Securities has made a written
request, such Holder of Preferred Securities may institute, to the fullest
extent permitted by law, a legal proceeding directly against the Debenture
Issuer to enforce the Property Trustee's rights under the Indenture without
first instituting any legal proceeding against the Property Trustee or any other
Person. In addition, if a Trust Enforcement Event has occurred and is continuing
and such event is attributable to the failure of the Debenture Issuer to make
any interest, principal or other required payments when due under the Indenture,
then a Holder of Preferred Securities may institute a Direct Action against the
Debenture Issuer on or after the respective due date specified in the
Debentures.
(d) The Property Trustee shall notify all Holders of the
Preferred Securities of any notice of any Indenture Event of Default received
from the Debenture Issuer with respect to the Debentures. Such notice shall
state that such Indenture Event of Default also constitutes a Trust Enforcement
Event. Except with respect to directing the time, method and place of conducting
a proceeding for a remedy, the Property Trustee shall be under no obligation to
take any of the actions described in Section 6.10(b), unless the Property
Trustee has received an Opinion of Counsel, rendered by a nationally recognized
independent tax counsel, to the effect that the Trust will not fail to be
classified as a grantor trust for United States federal income tax purposes as a
result of such action, and that each Holder of Preferred Securities shall be
treated as owning an undivided beneficial interest in the Debentures.
(e) If the consent of the Property Trustee, as the holder of
the Debentures, is required under the Indenture with respect to any amendment,
modification or termination of the Indenture, the Property Trustee shall request
the written direction of the Holders with respect to such amendment,
modification or termination and shall vote with respect to such amendment,
modification or termination as directed by a Majority in Liquidation Amount of
the Securities voting together as a single class; provided that where a consent
under the Indenture would require the consent of the Holders of a Super Majority
of the aggregate principal amount of the Debentures, the Property Trustee may
give such consent only at the direction of the Holders of the percentage of the
aggregate liquidation amount of the Securities which is at least equal to the
percentage required under the Indenture. The Property Trustee shall not take any
such action in accordance with the directions of the Holders of the Securities
unless the Property Trustee has received an Opinion of Counsel, rendered by a
nationally recognized independent tax counsel, to the effect that the Trust will
not fail to be classified as a grantor trust for United States federal income
tax purposes as a result of such action, and that each Holder of Securities will
be treated as owning an undivided beneficial interest in the Debentures.
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(f) A waiver of an Indenture Event of Default with respect to
the Debentures shall constitute a waiver of the corresponding Trust Enforcement
Event.
(g) Any required approval or direction of the Holders of the
Preferred Securities may be given at a separate meeting of the Holders of the
Preferred Securities convened for such purpose, at a meeting of all of the
Holders of the Securities or pursuant to written consent. The Administrative
Trustees shall cause a notice of any meeting at which Holders of the Preferred
Securities are entitled to vote to be mailed to each Holder of record of
Preferred Securities. Each such notice shall include a statement setting forth:
(i) the date of such meeting or the date by which
action is to be taken;
(ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are
entitled to vote or of the matter upon which
written consent is sought; and
(iii) instructions for the delivery of proxies or
consents.
(h) No vote or consent of the Holders of the Preferred
Securities shall be required for the Trust to redeem and cancel the Preferred
Securities or distribute the Debentures in accordance with this Declaration and
the terms of the Securities.
(i) Notwithstanding that the Holders of the Preferred
Securities are entitled to vote or consent under any of the circumstances
described above, any of the Preferred Securities that are owned at such time by
the Sponsor, the Trustees or any Affiliate of the Sponsor or any Trustee shall
not be entitled to vote or consent and shall be treated, solely for purposes of
such vote or consent, as if such Preferred Securities were not outstanding.
(j) Except as provided under Section 6.11(k), the Holders of
the Preferred Securities shall have no rights to appoint or remove the Trustees,
who may be appointed, removed or replaced solely by the Holders of the Common
Securities.
(k) If an Indenture Event of Default has occurred and is
continuing, the Property Trustee and the Delaware Trustee may be removed and
replaced by a Majority in Liquidation Amount of the Preferred Securities.
Section 6.12. Voting Rights of the Common Securities.
(a) Except as provided in Section 5.1(b), this Section 6.12 and
Section 11.1 and as otherwise required by the Statutory Trust Act, the Trust
Indenture Act or other applicable law, the Holders of the Common Securities
shall have no voting rights.
(b) Subject to Section 6.11(k), the Holders of the Common
Securities shall be entitled to vote to appoint, remove or replace any Trustee
or to increase or decrease the number of Trustees in accordance with Article V.
(c) Subject to Section 2.6 and only after all Trust Enforcement
Events with respect to the Preferred Securities have been cured, waived or
otherwise eliminated and subject to the requirement of the Property Trustee
receiving an Opinion of Counsel, rendered by an
59
independent law firm experienced in such matters, in certain circumstances set
forth in this Section 6.12(c), the Holders of the Common Securities shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Property Trustee, or to direct the exercise of any
trust or power conferred upon the Property Trustee under this Declaration,
including the right to direct the Property Trustee, as the holder of the
Debentures, to:
(i) exercise the remedies available to it under the
Indenture;
(ii) consent to any amendment or modification of the
Indenture or the Debentures where such consent is
required; or
(iii) waive any past default and its consequences that
are waivable under Section 2.11 of the First
Supplemental Indenture;
provided that where a consent or action under the Indenture would require the
consent or act of the Holders of a Super Majority of the aggregate principal
amount of Debentures affected thereby, only the Holders of the percentage of the
aggregate liquidation amount of the Common Securities which is at least equal to
the percentage required under the Indenture may direct the Property Trustee to
give such consent or take such action.
Except with respect to directing the time, method and place of conducting a
proceeding for a remedy, the Property Trustee shall be under no obligation to
take any of the actions described in clauses (i) and (ii) of this Section
6.12(c) unless the Property Trustee has received an Opinion of Counsel, rendered
by a nationally recognized independent tax counsel, to the effect that the Trust
will not fail to be classified as a grantor trust for United States federal
income tax purposes as a result of such action, and each Holder will be treated
as owning an undivided beneficial interest in the Debentures.
(d) If the Property Trustee fails to enforce its rights under
the Debentures after the Holders of the Common Securities have made a written
request pursuant to Section 6.11(c), the Holders of the Common Securities may
institute, to the fullest extent permitted by law, a legal proceeding directly
against the Debenture Issuer to enforce the Property Trustee's rights under the
Debentures without first instituting any legal proceeding against the Property
Trustee or any other Person.
(e) A waiver of an Indenture Event of Default with respect to
the Debentures shall constitute a waiver of the corresponding Trust Enforcement
Event.
(f) Any required approval or direction of the Holders of the
Common Securities may be given at a separate meeting of the Holders of the
Common Securities convened for such purpose, at a meeting of all of the Holders
of the Securities or pursuant to written consent. The Administrative Trustees
shall cause a notice of any meeting at which the Holders of the Common
Securities are entitled to vote to be mailed to the Holders of the Common
Securities. Such notice shall include a statement setting forth:
(i) the date of such meeting or the date by which the
action is to be taken;
(ii) a description of any resolution proposed for
adoption at such meeting on which the Holders of
the Common Securities are
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entitled to vote or of the matter upon which
written consent is sought; and
(iii) instructions for the delivery of proxies or
consents.
(g) No vote or consent of the Holders of the Common Securities
shall be required for the Trust to redeem and cancel the Common Securities or to
distribute the Debentures in accordance with this Declaration and the terms of
the Securities.
Section 6.13. Ranking.
The Preferred Securities rank pari passu with the Common
Securities and payment thereon shall be made on a Pro Rata basis with the Common
Securities, except that, if a Trust Enforcement Event occurs and is continuing,
no payments in respect of Distributions on, or payments upon liquidation,
redemption or otherwise with respect to, the Common Securities shall be made
until the Holders of the Preferred Securities shall be paid in full the
Distributions, Redemption Price, Liquidation Distribution and other payments to
which they are entitled at such time.
Section 6.14. Registrar, Paying Agent and Transfer Agent.
The Trust shall maintain in the Borough of Manhattan, The City
of New York or in the City of Wilmington, Delaware:
(i) an office or agency where Preferred Securities may
be presented for registration of transfer
("Registrar"),
(ii) an office or agency where Definitive Preferred
Securities may be presented for payment, if any
Preferred Securities are not represented by one or
more Global Preferred Securities ("Paying Agent");
and
(iii) an office or agency where Securities may be
presented for transfer and exchange ("Transfer
Agent").
The Registrar shall keep a register of the Preferred Securities
and of their transfer. The term "Registrar" includes any additional registrar,
"Paying Agent" includes any additional paying agent and the term "Transfer
Agent" includes any additional transfer agent. The Administrative Trustees on
behalf of the Trust may appoint the Registrar, the Paying Agent and the Transfer
Agent. If the Administrative Trustees fail to appoint or maintain another entity
as Registrar, Paying Agent or Transfer Agent, the Property Trustee shall act as
such. The Trust or any of its Affiliates may act as Paying Agent, Registrar, or
Transfer Agent. The Administrative Trustees on behalf of the Trust may change
any Registrar, Paying Agent or Transfer Agent without prior notice to any
Holder. The Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Administrative Trustees. The Administrative Trustees
on behalf of the Trust shall notify the Property Trustee and the Holders of any
change in the location of the office or agency of any Agent.
The Trust shall act as Paying Agent, Registrar and Transfer Agent
for the Common Securities.
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The Trust initially appoints the Property Trustee as Registrar,
Paying Agent, and Transfer Agent for the Preferred Securities.
Section 6.15. Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than the Property
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Property Trustee all money held by the Paying Agent
for the payment of Distributions, Redemption Price or Liquidation Amounts, and
will notify the Property Trustee if there are insufficient funds for such
purpose. While any such insufficiency continues, the Property Trustee may
require a Paying Agent to pay all money held by it to the Property Trustee. The
Trust at any time may require a Paying Agent to pay all money held by it to the
Property Trustee and to account for any money disbursed by it. Upon payment over
to the Property Trustee, the Paying Agent (if other than the Trust or an
Affiliate of the Trust) shall have no further liability for the money. If the
Trust or the Sponsor or any Affiliate of the Trust or the Sponsor acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent.
Section 6.16. Replacement Securities.
If a Holder claims that a Security owned by it has been lost,
destroyed or wrongfully taken or if such Security is mutilated and is
surrendered to the Trust or in the case of the Preferred Securities to the
Property Trustee, the Trust shall issue and the Property Trustee shall, upon
written order of the Trust signed by one Administrative Trustee, authenticate a
replacement Security if the Property Trustee's and the Trust's requirements, as
the case may be, are met. An indemnity bond must be provided by the Holder
which, in the judgment of the Property Trustee, is sufficient to protect the
Trustees, the Sponsor, the Trust or any authenticating agent from any loss which
any of them may suffer if a Security is replaced. The Trust may charge such
Holder for its expenses in replacing a Security.
Section 6.17. Outstanding Preferred Securities.
The Preferred Securities outstanding at any time are all the
Preferred Securities authenticated by the Property Trustee and, in the case of
the Global Preferred Securities, specified in the "Schedule of Increases or
Decreases in Global Preferred Security" attached thereto (or on the books and
records of the Property Trustee and the Clearing Agency or its nominee), except
for those canceled by it, those delivered to it for cancellation, and those
described in this Section as not outstanding.
A Preferred Security does not cease to be outstanding because the
Sponsor, one of the Trustees or any Affiliate of the Sponsor or any of the
Trustees owns the Security.
Section 6.18. Preferred Securities in Treasury.
In determining whether the Holders of the required amount of
Securities have concurred in any direction, waiver or consent, Preferred
Securities owned by the Sponsor, the Trustees or any Affiliate of the Sponsor or
any Trustees, as the case may be, shall be disregarded and deemed not to be
outstanding, except that for the purposes of determining whether the Property
Trustee shall be fully protected in relying on any such direction, waiver or
consent, only Securities which a Responsible Officer of the Property Trustee
actually knows are so owned shall be so disregarded.
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Section 6.19. Deemed Security Holders.
The Trustees may treat the Person in whose name any Security
shall be registered on the books and records of the Trust as the sole owner of
such Security for purposes of receiving Distributions and for all other purposes
whatsoever. Accordingly, the Trustees shall not be bound to recognize any
equitable or other claim to or interest in such Security on the part of any
Person, whether or not the Trust shall have actual or other notice thereof.
Section 6.20. Cancellation.
The Trust at any time may deliver Preferred Securities to the
Property Trustee for cancellation. The Registrar, Paying Agent and Transfer
Agent shall forward to the Property Trustee any Preferred Securities surrendered
to them for registration of transfer, redemption, exchange or payment. The
Property Trustee shall promptly cancel all Preferred Securities surrendered for
registration of transfer, redemption, exchange, payment, replacement or
cancellation and shall dispose of cancelled Preferred Securities as the Trust
directs in writing, provided that the Property Trustee shall not be obligated to
destroy Preferred Securities. The Trust may not issue new Preferred Securities
to replace Preferred Securities that it has paid or that have been delivered to
the Property Trustee for cancellation or that any Holder has exchanged.
Section 6.21. CUSIP Numbers.
The Trust in issuing the Preferred Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Property Trustee shall use
"CUSIP" numbers in Redemption Notices, Distribution Notices and notices of
Remarketing or as a convenience to Holders of Preferred Securities; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Preferred Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Preferred Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Sponsor will promptly notify the Property Trustee of any change in
the CUSIP numbers.
Section 6.22. Global Preferred Securities; Legends
(a) Every Global Preferred Security authenticated, executed on
behalf of the Holders and delivered hereunder shall bear a legend in
substantially the following form:
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
UNIT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
"DEPOSITARY"), OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS
EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE UNIT AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE
(OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR
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ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(b) An Administrative Trustee shall execute, and the Property
Trustee shall authenticate and deliver, one or more Global Preferred Securities
that:
(i) shall be registered in the name of the Clearing
Agency or the nominee of such Clearing Agency; and
(ii) shall be delivered by the Property Trustee to such
Clearing Agency or pursuant to such Clearing
Agency's instructions or, if no such instructions
are received by the Property Trustee, shall be held
by the Property Trustee as custodian for such
Clearing Agency.
The Global Preferred Securities shall represent such of the outstanding
Preferred Securities as shall be specified in the "Schedule of Increases or
Decreases in Global Preferred Security" attached thereto (or on the books and
records of the Property Trustee and the Clearing Agency or its nominee).
Initially the number of Preferred Securities evidenced by the Global Preferred
Securities shall be zero and shall not, at any time, represent more than
5,500,000 Preferred Securities with a maximum liquidation value of $275,000,000.
In addition, Global Preferred Securities shall bear a legend
substantially to the following effect:
"THIS PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY WITHIN THE
MEANING OF THE DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
"CLEARING AGENCY"), OR A NOMINEE OF THE CLEARING AGENCY. THIS PREFERRED
SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE ONLY IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION, AND NO TRANSFER
OF THIS PREFERRED SECURITY (OTHER THAN A
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TRANSFER OF THIS PREFERRED SECURITY AS A WHOLE BY THE CLEARING AGENCY
TO A NOMINEE OF THE CLEARING AGENCY OR BY A NOMINEE OF THE CLEARING
AGENCY TO THE CLEARING AGENCY OR ANOTHER NOMINEE OF THE CLEARING
AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
CLEARING AGENCY TO NEW YORK COMMUNITY CAPITAL TRUST V OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE CLEARING AGENCY (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE CLEARING AGENCY), AND
EXCEPT AS OTHERWISE PROVIDED IN THE DECLARATION, ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN."
(c) Preferred Securities not represented by a Global Preferred
Security issued in exchange for all or a part of a Global Preferred Security
pursuant to this Section 6.22 shall be registered in such names and in such
authorized denominations as the Clearing Agency, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Property
Trustee. Upon execution and authentication, the Property Trustee shall deliver
any Preferred Securities not represented by a Global Preferred Security to the
Persons in whose names such Definitive Preferred Securities are so registered.
(d) At such time as all interests in Global Preferred
Securities have been redeemed, repurchased or canceled, such Global Preferred
Securities shall be canceled, upon receipt thereof, by the Property Trustee in
accordance with standing procedures of the Clearing Agency. At any time prior to
such cancellation, if any interest in a Global Preferred Security is exchanged
for Preferred Securities not represented by a Global Preferred Security,
redeemed, canceled or transferred to a transferee who receives Preferred
Securities not represented by a Global Preferred Security, or if any Preferred
Security not represented by a Global Preferred Security is exchanged or
transferred for part of a Global Preferred Security, then, in accordance with
the standing procedures of the Clearing Agency, the aggregate stated liquidation
amount of such Global Preferred Security shall be reduced or increased, as the
case may be, and an endorsement shall be made on such Global Preferred Security
by the Property Trustee to reflect such reduction or increase in the "Schedule
of Increases or Decreases in Global Preferred Security" attached thereto.
(e) The Trust and the Property Trustee, as the authorized
representative of the Holders of the Preferred Securities, may deal with the
Clearing Agency for all purposes of this Declaration, including the making of
payments due on the Preferred Securities and exercising the rights of Holders of
the Preferred Securities hereunder. The rights of any Preferred Security
Beneficial Owners shall be limited to those established by law and agreements
between such owners and Clearing Agency Participants; provided that no such
agreement shall give to any
65
Person any rights against the Trust or the Property Trustee. Multiple requests
and directions from and votes of the Clearing Agency as the Holder of the
Preferred Securities represented by Global Preferred Securities with respect to
any particular matter shall not be deemed inconsistent to the extent they do not
represent an amount of Preferred Securities in excess of those held in the name
of the Clearing Agency or its nominee.
(f) If at any time the Clearing Agency notifies the Trust that
it is unwilling or unable to continue as Clearing Agency for the Preferred
Securities or if at any time the Clearing Agency no longer is eligible to serve
as Clearing Agency, the Administrative Trustees shall appoint a successor
Clearing Agency with respect to the Preferred Securities. If a successor
Clearing Agency is not appointed by the Trust within 90 days after the Trust
receives such notice or becomes aware of such ineligibility, the Trust's
election that the Preferred Securities be represented by one or more Global
Preferred Securities shall no longer be effective, and an Administrative Trustee
shall execute, and the Property Trustee shall authenticate and deliver,
Definitive Preferred Securities, in any authorized denominations, in an
aggregate stated liquidation amount equal to the aggregate stated liquidation
amount of the Global Preferred Securities representing the Preferred Securities,
in exchange for such Global Preferred Securities. An Administrative Trustee also
shall execute, and the Property Trustee also shall authenticate and deliver,
Definitive Preferred Securities, in any authorized denominations, in an
aggregate stated liquidation amount equal to the aggregate stated liquidation
amount of the Global Preferred Securities representing the Preferred Securities,
in exchange for such Global Preferred Securities, if (1) the Sponsor in its sole
discretion elects to cause the issuance of the Preferred Securities in
definitive form or (2) there shall have occurred and be continuing any event
which after notice or lapse of time or both would be a Trust Enforcement Event.
(g) The Administrative Trustees at any time and in their sole
discretion may determine that the Preferred Securities issued in the form of one
or more Global Preferred Securities shall no longer be represented by Global
Preferred Securities. In such event an Administrative Trustee on behalf of the
Trust shall execute, and the Property Trustee shall authenticate and deliver,
Definitive Preferred Securities, in any authorized denominations, in an
aggregate stated liquidation amount equal to the aggregate stated liquidation
amount of the Global Preferred Securities representing the Preferred Securities,
in exchange for such Global Preferred Securities.
(h) Notwithstanding any other provisions of this Declaration
(other than the provisions set forth in Section 7.1), Global Preferred
Securities may not be transferred as a whole except by the Clearing Agency to a
nominee of the Clearing Agency or by a nominee of the Clearing Agency to the
Clearing Agency or another nominee of the Clearing Agency or by the Clearing
Agency or any such nominee to a successor Clearing Agency or a nominee of such
successor Clearing Agency.
(i) Interests of Preferred Security Beneficial Owners in a
Global Preferred Security may be transferred or exchanged for Preferred
Securities not represented by a Global Preferred Security, and Preferred
Securities not represented by a Global Preferred Security may be transferred or
exchanged for a Global Preferred Security or Securities, in accordance with
rules of the Clearing Agency and the provisions of Section 7.1.
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ARTICLE VII
TRANSFER OF SECURITIES
Section 7.1. Transfer of Securities.
(a) The Preferred Securities may be transferred, in whole or in
part, only in accordance with the terms and conditions set forth in this
Declaration and in the terms of the Preferred Securities. To the fullest extent
permitted by law, any transfer or purported transfer of any Preferred Security
not made in accordance with this Declaration shall be null and void.
(b) Subject to this Section 7.1 and Section 6.22, the Preferred
Securities shall be freely transferrable.
(c) The Common Securities shall not be transferrable except as
provided in the Indenture.
(d) The Trust shall cause to be kept at the Corporate Trust Office
the books and records in which, subject to such reasonable regulations as it may
prescribe, the Trust shall provide for the registration of Preferred Securities
and of transfers of Preferred Securities.
(e) Upon surrender for registration of transfer of any Preferred
Securities at an office or agency of the Trust designated for such purpose, an
Administrative Trustee shall execute, and the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Securities of any authorized
denominations and of a like aggregate principal amount.
(f) At the option of the Holder, Preferred Securities may be
exchanged for other Preferred Securities of any authorized denominations and of
a like aggregate stated liquidation amount, upon surrender of the Preferred
Securities to be exchanged at such office or agency. Whenever any Preferred
Securities are so surrendered for exchange, an Administrative Trustee shall
execute, and the Property Trustee shall authenticate and deliver, the Preferred
Securities that the Holder making the exchange is entitled to receive.
(g) If so required by the Property Trustee, every Preferred
Security presented or surrendered for registration of transfer or for exchange
shall be duly endorsed, or accompanied by a duly executed written instrument of
transfer in form satisfactory to the Property Trustee and the Registrar, by the
Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be made for any registration of
transfer or exchange of Preferred Securities, but the Trust may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Preferred
Securities.
(i) If the Preferred Securities are to be redeemed in part,
neither the Administrative Trustees nor the Trust shall be required to register
the transfer of or exchange any Preferred Securities:
(i) during a period beginning on the opening of business 15
days before the day of the mailing of a Redemption
Notice or any notice of selection of Securities for
redemption; or
(ii) so selected for redemption, except the unredeemed
portion of any such Preferred Securities being redeemed
in part.
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Section 7.2. Separation and Rejoining of Units.
At any time after issuance, the Preferred Security and Warrant
components of any Unit may be separated by the holder and thereafter transferred
separately. In the event of any separation of the components of a Unit:
(a) if such Unit is represented by a definitive certificate, the
holder shall present such definitive certificate to the Unit Agent for
cancellation and the Unit Agent shall so notify the Unit registrar and shall
return the Preferred Security component of such Unit to the Property Trustee
with an instruction to countersign and deliver to, or upon the instruction of,
such holder a separated Preferred Security bearing the separate "CUSIP" number
assigned to the Preferred Security; and
(b) if such Unit is represented by a global certificate, the Unit
Agent shall make the necessary endorsement to the "Schedule of Exchanges of
Interests of Global Preferred Security" attached to the global unit certificate
or otherwise comply with its procedures to reduce the amount of Units
represented thereby and shall instruct the Property Trustee to effect a
corresponding increase in the Preferred Securities represented by the Global
Preferred Securities bearing a separate "CUSIP" number.
Once separated, a Preferred Security and Warrant may be rejoined
to form a Unit. In the event a holder of a Preferred Security and a Warrant
desires to rejoin a Unit:
(i) if the constituent components are represented by
definitive certificates, the holder shall present (A)
the Preferred Security to the Property Trustee and (B)
the Warrant to the Warrant Agent, in each case for
cancellation and the Property Trustee and the Warrant
Agent shall so notify the Unit Agent, who shall in turn
so notify the Unit registrar with an instruction for the
Unit registrar to countersign and deliver to, or upon
the instruction of, such holder a Unit certificate
bearing the separate "CUSIP" number assigned to the
Units; and
(ii) if the constituent components are represented by global
certificates, each of the Property Trustee and the
Warrant Agent shall make the necessary endorsement to
their respective global certificates or otherwise comply
with their procedures to reduce the amount of Preferred
Securities and Warrants, respectively, represented
thereby and shall instruct the Unit Agent to effect a
corresponding increase in the Units represented by the
global unit certificate bearing a separate "CUSIP"
number. The Property Trustee shall make such other
necessary endorsements to the Global Preferred
Securities, as directed by the Administrative Trustees,
to reflect the appropriate number of Units and Preferred
Securities, as appropriate, represented thereby.
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Section 7.3. Book-Entry Interests.
Global Preferred Securities shall initially be registered on the
books and records of the Trust in the name of Cede & Co., the nominee of the
Clearing Agency, and no Preferred Security Beneficial Owner will receive a
Definitive Preferred Security Certificate representing such Preferred Security
Beneficial Owner's interests in such Global Preferred Securities, except as
provided in Section 6.22. Unless Definitive Preferred Securities have been
issued to the Preferred Security Beneficial Owners pursuant to Sections 6.22(f)
and 6.22(g):
(a) the provisions of this Section 7.3 shall be in full force and
effect;
(b) to the extent that the provisions of this Section 7.3 conflict
with any other provisions of this Declaration, the provisions of this Section
7.3 shall control;
(c) the Trust, the Sponsor and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Declaration (including
the payment of Distributions on the Global Preferred Securities and receiving
approvals, votes or consents hereunder) as the Holder of the Preferred
Securities and the absolute owner of the Global Preferred Securities for all
purposes whatsoever and shall have no obligation to the Preferred Security
Beneficial Owners; and
(d) the rights of the Preferred Security Beneficial Owners shall
be exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security Beneficial
Owners and the Clearing Agency and/or the Clearing Agency Participants. The
Clearing Agency shall make book-entry transfers among the Clearing Agency
Participants and shall receive and transmit payments of Distributions on the
Global Preferred Securities to such Clearing Agency Participants; provided that
solely for the purposes of determining whether the Holders of the requisite
liquidation amount of Preferred Securities have voted on any matter provided for
in this Declaration, so long as Definitive Preferred Securities have not been
issued and the Preferred Securities remain in the form of one or more Global
Preferred Securities, the Trustees may rely conclusively on, and shall be
protected in relying on, any written instrument (including a proxy) delivered to
the Trustees by the Clearing Agency setting forth the votes of the Preferred
Security Beneficial Owners or assigning the right to vote on any matter to any
other Persons either in whole or in part.
Section 7.4. Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred Security
Holders is required under this Declaration, the Trustees shall give all such
notices and communications specified herein to be given to the Holders of Global
Preferred Securities to the Clearing Agency, and shall have no notice
obligations to the Preferred Security Beneficial Owners.
Section 7.5. Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the
Administrative Trustees may, in their sole discretion, appoint a successor
Clearing Agency with respect to such Preferred Securities.
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ARTICLE VIII
DISSOLUTION AND TERMINATION OF THE TRUST
Section 8.1. Dissolution and Termination of the Trust.
(a) The Trust shall automatically dissolve upon the earliest to
occur of:
(i) the bankruptcy of the Sponsor;
(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor, or the
revocation of the Sponsor's charter and the expiration
of 90 days after the date of revocation without a
reinstatement thereof;
(iii) the entry of a decree of judicial dissolution of the
Sponsor or the Trust by a court of competent
jurisdiction;
(iv) the time when all of the Securities shall have been
called for redemption and the amounts necessary for
redemption thereof shall have been paid to the Holders
in accordance with the terms of the Securities;
(v) the written notice from the Sponsor directing the
Property Trustee to distribute the Debentures to the
Holders in exchange for all of the Securities;
provided that the Sponsor has provided to the Property
Trustee an Opinion of a Counsel experienced in such
matters to the effect that the Holders will not
recognize any gain or loss for United States federal
income tax purposes as a result of the distribution of
Debentures and the dissolution of the Trust;
(vi) the time when all of the Administrative Trustees and
the Sponsor have consented to the dissolution of the
Trust, provided that such action is taken before the
issuance of any Securities; and
(vii) the expiration of the term of the Trust provided in
Section 3.14.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), and after satisfaction of liabilities to
creditors of the Trust, if any, as provided by applicable law, the
Administrative Trustees shall terminate the Trust by executing and filing in
accordance with the Statutory Trust Act a certificate of cancellation with the
Secretary of State of the State of Delaware.
(c) The provisions of Section 4.2 and Article IX shall survive
the termination of the Trust.
Section 8.2. Liquidation Distribution Upon Dissolution or Termination of the
Trust.
(a) In the event of any voluntary or involuntary dissolution,
liquidation, winding-up or termination of the Trust pursuant to Section 8.1
(each a "Liquidation"), the Trust shall be liquidated by the Administrative
Trustees as expeditiously as the Administrative Trustees determine to be
possible by distributing to the Holders, after satisfaction of liabilities to
creditors of the Trust, if any, as provided by applicable law, Debentures in an
aggregate principal amount
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equal to the aggregate stated liquidation amount of, with an interest rate
identical to the Distribution rate of, and accrued and unpaid interest equal to
accumulated and unpaid Distributions on, such Securities in exchange for such
Securities.
(b) If, notwithstanding the other provisions of this Section 8.2,
distribution of the Debentures in the manner set forth in Section 8.2(a) is
determined by the Administrative Trustees not to be practical, the assets of the
Trust shall be liquidated, and the Trust shall be wound-up by the Administrative
Trustees in such manner as the Administrative Trustees determine. In such event,
the Holders shall be entitled to receive out of the assets of the Trust
available for distribution to the Holders, after satisfaction of liabilities to
creditors of the Trust, if any, as provided by applicable law, an amount equal
to the Accreted Value of the Securities plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such Liquidation, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to pay
the aggregate Liquidation Distribution in full, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis;
provided that if an Indenture Event of Default has occurred and is continuing,
then the Preferred Securities shall have a preference over the Common Securities
with regard to the Liquidation Distribution.
(c) Notice of any distribution of Debentures in exchange for the
Securities pursuant to Section 8.2(a) (an "Exchange Notice"), which notice shall
be irrevocable, shall be given by the Administrative Trustees on behalf of the
Trust by mail to each Holder at least 30 but no more than 60 days before the
date fixed for such distribution. For purposes of the calculation of the date of
distribution and the dates on which notices are given pursuant to this Section
8.2(c), an Exchange Notice shall be deemed to be given on the day such notice is
first mailed by first-class mail, postage prepaid, to the Holders. Each Exchange
Notice shall be addressed to the Holders at the address of each such Holder
appearing on the books and records of the Trust. No defect in the Exchange
Notice or in the mailing of either thereof with respect to any Holder shall
affect the validity of the distribution proceedings with respect to any other
Holder.
(d) On and from the date fixed for any distribution of Debentures
upon dissolution of the Trust:
(i) the Securities no longer shall be deemed to be
outstanding;
(ii) the Clearing Agency or its nominee (or any successor
Clearing Agency or its nominee), as the Holder of the
Preferred Securities, will receive a registered global
certificate or certificates representing the
Debentures to be delivered upon such distribution; and
(iii) any certificates representing Securities not held by
the Clearing Agency or its nominee (or any successor
Clearing Agency or its nominee) shall be deemed to
represent Debentures having an aggregate principal
amount equal to the aggregate liquidation amount of
such Securities and bearing accrued and unpaid
interest in an amount equal to the accumulated and
unpaid Distributions on such Securities, until such
certificates are presented for cancellation, at which
time the Debenture Issuer
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shall issue, and the Indenture Trustee shall
authenticate, a certificate representing such
Debentures.
ARTICLE IX
LIMITATION OF LIABILITY OF THE HOLDERS, THE TRUSTEES OR OTHERS
Section 9.1. Liability.
(a) Except as expressly set forth in this Declaration, the
Guarantee and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the
Holders which shall be made solely from assets of the
Trust; and
(ii) required to pay to the Trust or to any Holder any
deficit upon dissolution of the Trust or otherwise.
(b) The Sponsor, in its capacity as Debenture Issuer, shall be
liable for all of the debts and obligations of the Trust (other than in respect
of the Securities) to the extent such debts and obligations are not satisfied
out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Statutory Trust Act, the
Holders shall 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.
Section 9.2. Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence (or in
the case of the Property Trustee or the Delaware Trustee, negligence) or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters such
Indemnified Person reasonably believes to be within such other Person's
professional or expert competence and, if selected by such Indemnified Person,
who has been selected with reasonable care, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which Distributions to Holders might properly be paid.
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Section 9.3. Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between a Covered Person and an Indemnified Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder, the Indemnified Person shall
resolve such conflict of interest, take such action or
provide such terms, considering in each case the
relative interest of each party (including its own
interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices
and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by
the Indemnified Person, the resolution, action or term
so made, taken or provided by the Indemnified Person
shall not constitute a breach of this Declaration or
any other agreement contemplated herein or of any duty
or obligation of the Indemnified Person at law or in
equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires,
including its own interests, and shall have no duty or
obligation to give any consideration to any interest of
or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express
standard and shall not be subject to any other or
different standard imposed by this Declaration or by
applicable law.
Section 9.4. Indemnification of Company Indemnified Persons.
(a) The Sponsor shall indemnify, to the fullest extent permitted
by law, any Company Indemnified Person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal,
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administrative or investigative (other than an action by or in the right of the
Trust) by reason of the fact that he is or was a Company Indemnified Person
against expenses (including attorneys' fees and expenses), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Company Indemnified Person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(b) The Sponsor shall indemnify, to the fullest extent permitted
by law, any Company Indemnified Person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Trust to procure a judgment in its favor by reason of the fact
that he is or was a Company Indemnified Person against expenses (including
attorneys' fees and expenses) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust and except that no such indemnification shall be
made in respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to the Trust, unless
and only to the extent that the Court of Chancery of Delaware or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such Person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem proper.
(c) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action without
prejudice or the settlement of an action without admission of liability) in
defense of any action, suit or proceeding referred to in paragraphs (a) and (b)
of this Section 9.4, or in defense of any claim, issue or matter therein, he
shall be indemnified, to the fullest extent permitted by law, against expenses
(including attorneys' fees and expenses) actually and reasonably incurred by him
in connection therewith.
(d) Any indemnification under paragraphs (a) and (b) of this
Section 9.4 (unless ordered by a court) shall be made by the Sponsor only as
authorized in the specific case upon a determination that indemnification of the
Company Indemnified Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (a) and (b). Such
determination shall be made:
(i) by the Administrative Trustees by a majority vote of a
Quorum consisting of such Administrative Trustees who
were not parties to such action, suit or proceeding;
(ii) if such a Quorum is not obtainable, or, even if
obtainable, if a Quorum of disinterested Administrative
Trustees so directs, by independent legal counsel in a
written opinion; or
(iii) by the Holder of the Common Securities of the Trust.
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(e) Expenses (including attorneys' fees and expenses) incurred by
a Company Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (a) and (b)
of this Section 9.4 shall be paid by the Sponsor in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such Company Indemnified Person to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by the
Sponsor as authorized in this Section 9.4. Notwithstanding the foregoing, no
advance shall be made by the Sponsor if a determination is reasonably and
promptly made:
(i) by the Administrative Trustees by a majority vote of a
Quorum consisting of such Administrative Trustees who
were not parties to such action, suit or proceeding;
(ii) if such a Quorum is not obtainable, or, even if
obtainable, if a Quorum of disinterested Administrative
Trustees so directs, by independent legal counsel in a
written opinion; or
(iii) by the Holder of the Common Securities
that, based upon the facts known to the Administrative Trustees, independent
legal counsel or the Holder of the Common Securities at the time such
determination is made, such Company Indemnified Person acted in bad faith or in
a manner that the Holder of the Common Securities did not believe to be in or
believed was opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Company Indemnified Person believed or had
reasonable cause to believe his or her conduct was unlawful.
In no event shall any advance be made in instances where the
Administrative Trustees, independent legal counsel or Holder of Common
Securities reasonably determine that a Company Indemnified Person deliberately
breached his or her duty to the Trust or Holders of Common Securities or
Preferred Securities.
(f) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other paragraphs of this Section 9.4 shall not be
deemed exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Sponsor or of the Holders of
Preferred Securities of the Trust or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office. All rights to indemnification under this Section 9.4 shall be deemed to
be provided by a contract between the Sponsor and each Company Indemnified
Person who serves in such capacity at any time while this Section 9.4 is in
effect. Any repeal or modification of this Section 9.4 shall not affect any
rights or obligations then existing.
(g) The Sponsor or the Trust may purchase and maintain insurance
on behalf of any person who is or was a Company Indemnified Person against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his or her status as such, whether or not the Sponsor would have
the power to indemnify him or her against such liability under the provisions of
this Section 9.4.
(h) For purposes of this Section 9.4, references to "the Trust"
shall include, in addition to the resulting or surviving entity, any constituent
entity (including any constituent of
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a constituent) absorbed in a consolidation or merger, so that any person who is
or was a director, trustee, officer or employee of such constituent entity, or
is or was serving at the request of such constituent entity as a director,
trustee, officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 9.4 with respect to the resulting
or surviving entity as he would have with respect to such constituent entity if
its separate existence had continued.
(i) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section 9.4 shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a Company
Indemnified Person and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 9.5. Indemnification of Trustees.
(a) The Sponsor agrees to indemnify:
(i) the Property Trustee;
(ii) the Delaware Trustee;
(iii) any Affiliate of the Property Trustee and the Delaware
Trustee; and
(iv) any officers, directors, shareholders, members, partners,
employees, representatives, custodians, nominees or agents
of the Property Trustee or the Delaware Trustee (each of the
Persons in (i) through (iv), including the Property Trustee
and the Delaware Trustee in their respective individual
capacities, being referred to as a "Fiduciary Indemnified
Person")
for, and to hold each Fiduciary Indemnified Person harmless against, any and all
loss, liability, damage, claim or expense including taxes (other than taxes
based on the income of such Fiduciary Indemnified Person) of any kind and nature
whatsoever incurred without negligence or bad faith on the part of such
Fiduciary Indemnified Person, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
against or investigating any claim or liability in connection with the exercise
or performance of any of the powers or duties of such Fiduciary Indemnified
Person hereunder. The Sponsor agrees to advance expenses (including legal fees)
incurred by a Fiduciary Indemnified Person in defending any claim, demand,
action, suit or proceeding, from time to time, prior to the final disposition of
such claim, demand, action, suit or proceeding, upon receipt by the Sponsor of
an undertaking by or on behalf of such Fiduciary Indemnified Person to repay
such amount if it shall be determined that such Fiduciary Indemnified Person is
not entitled to be indemnified as authorized in this section. The obligations as
set forth in this Section 9.5 shall survive the resignation or removal of the
Property Trustee or the Delaware Trustee, the termination of the Trust and the
satisfaction and discharge of this Declaration.
(b) The Sponsor agrees to pay the Property Trustee and the
Delaware Trustee, from time to time, such compensation for all services rendered
by the Property Trustee and the Delaware Trustee hereunder as may be mutually
agreed upon in writing by the Sponsor
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and the Property Trustee or the Delaware Trustee, as the case may be, and,
except as otherwise expressly provided herein, to reimburse the Property Trustee
and the Delaware Trustee upon its or their request for all reasonable expenses
(including legal fees and expenses), disbursements and advances incurred or made
by the Property Trustee or the Delaware Trustee, as the case may be, in
accordance with the provisions of this Declaration, except any such expense,
disbursement or advance as may be attributable to its or their negligence or bad
faith.
Section 9.6. Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee may engage in or possess an interest in other business ventures
of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom, and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed wrongful
or improper. No Covered Person, the Sponsor, the Delaware Trustee or the
Property Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person,
the Sponsor, the Delaware Trustee and the Property Trustee shall have the right
to take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE X
ACCOUNTING
Section 10.1. Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
Section 10.2. Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Administrative Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The books of account and the records of the
Trust shall be examined by and reported upon as of the end of each Fiscal Year
of the Trust by a firm of independent certified public accountants selected by
the Administrative Trustees.
(b) The Administrative Trustees shall cause to be prepared and
delivered to each Holder, within 90 days after the end of each Fiscal Year of
the Trust, annual financial statements of the Trust, including a balance sheet
of the Trust as of the end of such Fiscal Year, and the related statements of
income or loss.
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(c) The Administrative Trustees shall cause to be duly prepared
and delivered to each Holder, an annual United States federal income tax
information statement, required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Administrative Trustees shall endeavor to
deliver all such information statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Administrative Trustees shall cause to be duly prepared
and filed with the appropriate taxing authority an annual United States federal
income tax return, on Form 1041 or such other form required by United States
federal income tax law, and any other annual income tax returns required to be
filed on behalf of the Trust with any state or local taxing authority.
Section 10.3. Banking.
The Trust may maintain one or more bank accounts in the name and
for the sole benefit of the Trust; provided, however, that all payments of funds
in respect of the Debentures held by the Property Trustee shall be made directly
to the Property Account and no other funds of the Trust shall be deposited in
the Property Account. The sole signatories for such accounts shall be designated
by the Administrative Trustees; provided, however, that the Property Trustee
shall designate the signatories for the Property Account.
Section 10.4. Withholding.
The Trust and the Administrative Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Administrative Trustees shall request, and the Holders shall provide to the
Trust, such forms or certificates as are necessary to establish an exemption
from withholding with respect to each Holder, and any representations and forms
as shall reasonably be requested by the Administrative Trustees to assist them
in determining the extent of, and in fulfilling, the Trust's withholding
obligations. The Administrative Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to Distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
Distribution in the amount of the withholding to such Holder. In the event of
any claimed over-withholding, the Holder shall be limited to an action against
the applicable jurisdiction. If the amount required to be withheld was not
withheld from actual Distributions made, the Trust may reduce subsequent
Distributions by the amount of such withholding.
ARTICLE XI
AMENDMENTS AND MEETINGS
Section 11.1. Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by:
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(i) the Sponsor;
(ii) the Administrative Trustees (or if there are more than
two Administrative Trustees a majority of the
Administrative Trustees);
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the
Property Trustee; and
(iv) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the
Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust
and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this
Declaration (including the terms of the
Securities); and
(B) an Opinion of Counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this
Declaration (including the terms of the
Securities) and that all conditions precedent,
if any, in this Declaration to the execution and
delivery of such amendment have been satisfied;
and
(ii) to the extent the result of such amendment would be
to:
(A) cause the Trust to be classified other than as a
grantor trust for purposes of United States
federal income taxation;
(B) reduce or otherwise adversely affect the powers
of the Property Trustee in contravention of the
Trust Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the
Investment Company Act.
(c) This Declaration shall not be amended without the consent of
the Sponsor, a majority of the Administrative Trustees and the Holders of at
least a 66 2/3% in Liquidation Amount of the Securities if such amendment would:
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(i) adversely affect the powers, preferences or special
rights of the Securities, whether by way of amendment
to this Declaration or otherwise; or
(ii) result in the dissolution, winding-up or termination
of the Trust other than pursuant to the terms of this
Declaration;
provided that if any amendment referred to in clause (i) above would adversely
affect only the Preferred Securities or the Common Securities, then only the
Holders of the affected class will be entitled to vote on such amendment, and
such amendment shall not be effective except with the approval of a 66 2/3% in
Liquidation Amount of the Holders of the class of Securities affected thereby.
(d) Neither Article IV nor the rights of the holders of the
Common Securities under Article V to increase or decrease the number of, and
appoint and remove, Trustees shall be amended without the consent of the Holders
of a Majority in Liquidation Amount of the Common Securities.
(e) This Section 11.1 shall not be amended without the consent
of all of the Holders.
(f) This Declaration may not be amended without the consent of
each Holder affected thereby to:
(i) change the amount or timing of any Distribution on
the Securities or otherwise adversely affect the
amount of any Distribution required to be made in
respect of the Securities as of a specified date;
(ii) restrict the right of a Holder to institute suit for
the enforcement of any such payment on or after the
due date of such payment; or
(iii) change the Repurchase Right of any holder of a Unit.
(iv) This Declaration may be amended without the consent
of the Holders to:
(v) cure any ambiguity;
(vi) correct or supplement any provision in this
Declaration that may be defective or inconsistent
with any other provision of this Declaration, or to
make any other provisions with respect to matters or
questions arising under this Declaration that shall
not be inconsistent with the other provisions of this
Declaration;
(vii) add to the covenants, restrictions or obligations of
the Sponsor;
(viii) conform to any change in Rule 3a-5 or written change
in interpretation or application of Rule 3a-5 by any
legislative body, court, government agency or
regulatory authority which
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amendment does not have a material adverse effect on
the rights, preferences or privileges of the holders
of the Securities;
(ix) modify, eliminate or add to any provisions of this
Declaration to such extent as shall be necessary to
ensure that the Trust will be classified for United
States federal income tax purposes as a grantor trust
at all times that any Securities are outstanding or
to ensure that the Trust will not be required to
register as an Investment Company under the
Investment Company Act; or
(x) facilitate the tendering, remarketing and settlement
of the Preferred Securities as contemplated by
Section 6.6(s);
provided, however, that none of the foregoing actions shall adversely affect in
any material respect the interests of the Holders, and any amendments of this
Declaration shall become effective when notice thereof is given to the Holders.
Section 11.2. Meetings of the Holders; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Administrative Trustees (or as provided in the terms
of the Securities) to consider and act on any matter on which Holders of such
class of Securities are entitled to act under the terms of this Declaration, the
terms of the Securities or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading. The Administrative
Trustees shall call a meeting of the Holders of such class if directed to do so
by the Holders of at least 10% in Liquidation Amount of such class of
Securities. Such direction shall be given by delivering to the Administrative
Trustees one or more notices in writing stating that the signing Holders wish to
call a meeting and indicating the general or specific purpose for which the
meeting is to be called. Any Holder or Holders calling a meeting shall specify
in writing the Securities held by the Holder or Holders exercising the right to
call a meeting and only those Securities specified shall be counted for purposes
of determining whether the required percentage set forth in the second sentence
of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders:
(i) Notice of any such meeting shall be given to all the
Holders having a right to vote thereat at least seven
days and not more than 60 days before the date of
such meeting. Whenever a vote, consent or approval of
the Holders is permitted or required under this
Declaration or the rules of any stock exchange on
which the Preferred Securities are listed or admitted
for trading, such vote, consent or approval may be
given at a meeting of the Holders. Any action that
may be taken at a meeting of the Holders may be taken
without a meeting if a consent in writing setting
forth the action so taken is signed by the Holders
owning not less than the minimum amount of Securities
in liquidation amount that would be necessary to
authorize or take such action at a meeting at which
all Holders having a right to vote thereon were
present and voting. Prompt notice of the taking of
action without a
81
meeting shall be given to the Holders entitled to
vote who have not consented in writing. The
Administrative Trustees may specify that any written
ballot submitted to the Holders for the purpose of
taking any action without a meeting shall be returned
to the Trust within the time specified by the
Administrative Trustees.
(ii) Each Holder may authorize any Person to act for it by
proxy on any and all matters in which such Holder is
entitled to participate, including waiving notice of
any meeting, or voting or participating at a meeting.
No proxy shall be valid after the expiration of
eleven months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable
at the pleasure of the Holder executing such proxy.
Except as otherwise provided herein, all matters
relating to the giving, voting or validity of proxies
shall be governed by the General Corporation Law of
the State of Delaware relating to proxies, and
judicial interpretations thereunder, as if the Trust
were a Delaware corporation and the Holders were
stockholders of a Delaware corporation.
(iii) Each meeting of the Holders shall be conducted by the
Administrative Trustees or by such other Person that
the Administrative Trustees may designate.
(iv) Unless the Statutory Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or
the listing rules of any stock exchange on which the
Preferred Securities are then listed or trading
otherwise provides, the Administrative Trustees, in
their sole discretion, shall establish all other
provisions relating to meetings of Holders, including
notice of the time, place or purpose of any meeting
at which any matter is to be voted on by any Holders,
waiver of any such notice, action by consent without
a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any
other matter with respect to the exercise of any such
right to vote.
ARTICLE XII
REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE
Section 12.1. Representations and Warranties of the Property Trustee.
The initial Property Trustee represents and warrants to the Trust
and to the Sponsor at the date of this Declaration, and each Successor Property
Trustee represents and warrants to the Trust and the Sponsor at the time of the
Successor Property Trustee's acceptance of its appointment as Property Trustee,
that:
(a) the Property Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, with trust
82
powers and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
(b) the Property Trustee satisfies the requirements set forth in
Section 5.3(a);
(c) the execution, delivery and performance by the Property
Trustee of this Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee; this Declaration has been duly
executed and delivered by the Property Trustee and under Delaware law (excluding
any securities laws) constitutes a legal, valid and binding obligation of the
Property Trustee enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency and other similar
laws affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
(d) the execution, delivery and performance of this Declaration
by the Property Trustee does not conflict with, or constitute a breach of, the
charter or by-laws of the Property Trustee; and
(e) no consent, approval or authorization of, or registration
with or notice to, any federal or state banking authority governing the trust
powers of the Property Trustee is required for the execution, delivery or
performance by the Property Trustee of this Declaration.
Section 12.2. Representations and Warranties of the Delaware Trustee.
The initial Delaware Trustee represents and warrants to the Trust
and to the Sponsor at the date of this Declaration, and each Successor Delaware
Trustee represents and warrants to the Trust and the Sponsor at the time of the
Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee,
that:
(a) the Delaware Trustee is, if not a natural person, a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, with trust power and authority to execute and deliver,
and to carry out and perform its obligations under the terms of, this
Declaration;
(b) the Delaware Trustee satisfies the requirements set forth in
Section 5.2(a);
(c) the execution, delivery and performance by the Delaware
Trustee of this Declaration has been duly authorized, if the Delaware Trustee is
not a natural person, by all necessary corporate action on the part of the
Delaware Trustee; this Declaration has been duly executed and delivered by the
Delaware Trustee and under Delaware law (excluding securities laws) constitutes
a legal, valid and binding obligation of the Delaware Trustee enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law);
(d) the execution, delivery and performance of this Declaration
by the Delaware Trustee, if not a natural person, does not conflict with, or
constitute a breach of, the charter or by-laws of the Delaware Trustee; and
83
(e) no consent, approval or authorization of, or registration
with or notice to, any federal or state banking authority governing the trust
powers of the Delaware Trustee is required for the execution, delivery or
performance by the Delaware Trustee of this Declaration.
ARTICLE XIII
MISCELLANEOUS
Section 13.1. Notices.
All notices provided for in this Declaration shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by first class mail, as follows:
(a) if given to the Trust or the Administrative Trustees, at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Property Trustee, the Delaware Trustee and the Holders):
New York Community Capital Trust V
c/o New York Community Bancorp, Inc.
615 Merrick Avenue
Westbury, New York 11590.
Attention: Administrative Trustee, c/o Chief Financial Officer
Facsimile No.: (516) 683-8385
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as Delaware Trustee may give notice of to the
Administrative Trustees, the Property Trustee and the Holders):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Department
Facsimile No.: (302) 636-4140
(c) if given to the Property Trustee, at the Property Trustee's
mailing address set forth below (or such other address as the Property Trustee
may give notice of to the Administrative Trustees, the Delaware Trustee and the
Holders):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Facsimile No.: (302) 636-4140
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Property Trustee, the
Delaware Trustee and the Trust):
84
New York Community Bancorp, Inc.
615 Merrick Avenue
Westbury, New York 11590.
Attention: Chief Financial Officer
Facsimile No.: (516) 683-8385
(e) if given to any Holder of Preferred Securities, to the
Clearing Agency, and if Definitive Preferred Securities have been issued, at
such Holder's address set forth on the books and records of the Trust.
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed, or mailed by first class mail, postage
prepaid except that if a notice or other document is refused delivery or cannot
be delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
Section 13.2. Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by, and construed in accordance with, the laws of the State of Delaware
without regard to conflict of laws principles thereof.
Section 13.3. Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified as a grantor trust for United States federal income tax purposes. The
provisions of this Declaration shall be interpreted to further this intention of
the parties.
Section 13.4. Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision.
Section 13.5. Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
Section 13.6. Partial Enforceability.
If any provision of this Declaration or the application of such
provision to any Person or circumstance shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
85
Section 13.7. Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
Section 13.8. The Exchange Agent.
The Exchange Agent undertakes to perform, with respect to the
Preferred Securities, such duties and only such duties as are specifically set
forth in this Declaration, and no implied covenants or obligations shall be read
into this Declaration against the Exchange Agent. In the performance of such
duties, the Exchange Agent shall be entitled to the same rights and powers as
are granted to the Property Trustee, except that the Exchange Agent shall act as
agent solely for the Holders of the Preferred Securities who seek to exchange
such Preferred Securities pursuant to Sections 6.7 and 6.8.
86
IN WITNESS WHEREOF, the undersigned has caused these presents to
be executed as of the day and year first above written.
New York Community Bancorp, Inc., as
Sponsor
By: ____________________________________
Name:
Title:
Joseph R. Ficalora, as Administrative
Trustee
________________________________________
Robert Wann, as Administrative Trustee
________________________________________
Thomas R. Cangemi, as Administrative
Trustee
________________________________________
Wilmington Trust Company, as Property
Trustee
By: ____________________________________
Name:
Title:
Wilmington Trust Company, as Delaware
Trustee
By: ____________________________________
Name:
Title:
EXHIBIT A
[FORM OF PREFERRED SECURITY CERTIFICATE]
THIS PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY WITHIN THE
MEANING OF THE DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "CLEARING AGENCY"),
OR A NOMINEE OF THE CLEARING AGENCY. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR
PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE CLEARING
AGENCY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
DECLARATION, AND NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER
OF THIS PREFERRED SECURITY AS A WHOLE BY THE CLEARING AGENCY TO A NOMINEE OF THE
CLEARING AGENCY OR BY A NOMINEE OF THE CLEARING AGENCY TO THE CLEARING AGENCY OR
ANOTHER NOMINEE OF THE CLEARING AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE CLEARING AGENCY TO NEW YORK COMMUNITY CAPITAL TRUST V OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & Co. or such other name as requested
by an authorized representative of the Clearing Agency (and any payment hereon
is made to Cede & Co. or to such other entity as is requested by an authorized
representative of the Clearing Agency), and except as otherwise provided in the
Declaration, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has
an interest herein.
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF
THE UNIT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A
NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE UNIT AGREEMENT AND NO TRANSFER OF
THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
A-1
WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-2
CERTIFICATE EVIDENCING PREFERRED SECURITIES
of
NEW YORK COMMUNITY CAPITAL TRUST V
6.00% Preferred Securities
(stated liquidation amount $50.00 per Preferred Security)
Certificate No.:
Number of Preferred Securities:
CUSIP No.: 64944P 20 8
New York Community Capital Trust V, a statutory trust created
under thelaws of the State of Delaware (the "Trust"), hereby certifies that Cede
& Co.(the "Holder") is the registered owner of preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the Preferred Securities (stated liquidation amount $50 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in the Declaration (as defined below). The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities represented hereby are issued and shall
in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust, dated as of ___________, 2002 (as the same
may be amended from time to time (the "Declaration"), among New York Community
Bancorp, Inc., as Sponsor, Messrs. Joseph R. Ficalora, Robert Wann and Thomas R.
Cangemi, as Administrative Trustees, Wilmington Trust Company, as Property
Trustee, and Wilmington Trust Company, as Delaware Trustee. Capitalized terms
used but not defined herein shall have the meaning given them in the
Declaration. The Holder is entitled to the benefits of the Guarantee Agreement,
dated as of ___________, 2002, between New York Community Bancorp, Inc., as
Guarantor, and Wilmington Trust Company, as Guarantee Trustee, in respect of the
Preferred Securities. The Sponsor will provide a copy of the Declaration, the
Guarantee Agreement and the Indenture (including any supplemental indenture) to
a Holder without charge upon written request to the Sponsor at its principal
place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration, the Indenture, Guarantee Agreement, the Guarantee and the Debenture
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Preferred
Securities as evidence of undivided beneficial interests in the Debentures.
A-3
IN WITNESS WHEREOF, the Trust has executed this certificate this
.. day of [ ], 2002.
NEW YORK COMMUNITY CAPITAL TRUST V
By: ________________________________
Name:
Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the within-mentioned
Declaration.
Dated: [ ] ., 2002
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Property Trustee
By:____________________________
Authorized Signatory
A-4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints agent to transfer this Preferred Security Certificate
on the books and records of the Trust. The agent may substitute another to act
for him. Date:
Signature:______________________________________________________________________
(Sign exactly as your name appears on the Preferred Security Certificate)
Date:
Signature Guarantee*:
________________________________________________________________________________
*
Signature must be guaranteed by an "eligible guarantor institution" that is a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-5
SCHEDULE OF INCREASES OR DECREASES IN
GLOBAL PREFERRED SECURITY/(2)/
This Global Preferred Security shall represent 0 (Zero) Preferred
Securities unless otherwise indicated below.
The following increases or decreases in this Global Preferred
Security have been made:
- ----------------------------------------------------------------------------------------------------------
Amount of decrease in Amount of increase in Number of Preferred
Number of Preferred Number of Preferred Securities evidenced by this Signature of
Securities evidenced Securities evidenced Global Preferred authorized
by this Global by this Global Security following such officer
Date Preferred Security Preferred Security decrease or increase of Agent
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------
(2) Insert in Global Preferred Securities only.
A-6
EXHIBIT B
[FORM OF COMMON SECURITY CERTIFICATE]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED
IN THE DECLARATION (AS DEFINED BELOW)
CERTIFICATE EVIDENCING COMMON SECURITIES
of
NEW YORK COMMUNITY CAPITAL TRUST V
6.00% Common Securities
(stated liquidation amount $50.00 per Common Security)
Certificate No.: .
Number of Common Securities:
New York Community Capital Trust V, a statutory trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that New
York Community Bancorp, Inc. (the "Holder") is the registered owner of [ ]
common securities of the Trust representing undivided beneficial interests in
the assets of the Trust designated the Common Securities (stated liquidation
amount $50.00 per Common Security) (the "Common Securities"). Except as provided
in the Declaration (as defined below), the Common Securities are not
transferable, and any attempted transfer thereof shall be void. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust, dated as of ___________, 2002 (as the same may be amended from time
to time (the "Declaration"), among New York Community Bancorp, Inc., as Sponsor,
Messrs. Joseph R. Ficalora, Robert Wann and Thomas R. Cangemi, as Administrative
Trustees, Wilmington Trust Company, as Property Trustee, and Wilmington Trust
Company, as Delaware Trustee. Capitalized terms used but not defined herein
shall have the meaning given them in the Declaration. The Holder is entitled to
the benefits of the Guarantee Agreement, dated as of ___________, 2002, between
New York Community Bancorp, Inc., as Guarantor, and Wilmington Trust Company, as
Guarantee Trustee, in respect of the Common Securities. The Sponsor will provide
a copy of the Declaration, the Guarantee Agreement and the Indenture (including
any supplemental indenture) to a Holder without charge upon written request to
the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration, the Governance Agreement and the Guarantee and is entitled to the
benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of undivided beneficial interests in the Debentures.
F-1
IN WITNESS WHEREOF, the Trust has executed this certificate this
.. day of [ ], 2002.
NEW YORK COMMUNITY CAPITAL TRUST V
By: ________________________________
Name:
Administrative Trustee
F-2