Exhibit 4(m)(ii)
================================================================================
GUARANTEE AGREEMENT
between
New York Community Bancorp, Inc.,
as Guarantor
and
Wilmington Trust Company,
as Guarantee Trustee
Dated as of ____________, 2002
================================================================================
TABLE OF CONTENTS
Page
Article I DEFINITIONS AND INTERPRETATION ............................................ 1
Section 1.1. Interpretation .................................................... 1
Section 1.2. Definitions ....................................................... 2
Article II TRUST INDENTURE ACT ....................................................... 6
Section 2.1. Trust Indenture Act, Application .................................. 6
Section 2.2. Lists of Holders of Securities .................................... 6
Section 2.3. Reports by the Guarantee Trustee .................................. 6
Section 2.4. Periodic Reports to the Guarantee Trustee ......................... 7
Section 2.5. Evidence of Compliance with Conditions Precedent .................. 7
Section 2.6. Events of Default; Waiver ......................................... 7
Section 2.7. Event of Default; Notice .......................................... 7
Section 2.8. Conflicting Interests ............................................. 8
Section 2.9. Disclosure of Information ......................................... 8
Section 2.10. Guarantee Trustee May File Proofs of Claim ........................ 8
Article III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE ............................ 8
Section 3.1. Powers and Duties of the Guarantee Trustee ........................ 8
Section 3.2. Certain Rights of Guarantee Trustee ............................... 10
Section 3.3. Not Responsible for Recitals or Issuance of Guarantee ............. 12
Article IV GUARANTEE TRUSTEE ......................................................... 12
Section 4.1. Guarantee Trustee: Eligibility .................................... 12
Section 4.2. Appointment, Removal and Resignation of Guarantee Trustee ......... 13
Article V GUARANTEE ................................................................. 14
Section 5.1. Guarantee ......................................................... 14
Section 5.2. Waiver of Notice and Demand ....................................... 14
Section 5.3. Obligations Not Affected .......................................... 14
Section 5.4. Rights of Holders ................................................. 15
Section 5.5. Guarantee of Payment .............................................. 16
Section 5.6. Subrogation ....................................................... 16
Section 5.7. Independent Obligations ........................................... 16
Article VI LIMITATION OF TRANSACTIONS; SUBORDINATION ................................. 17
Section 6.1. Limitation of Transactions ........................................ 17
i
TABLE OF CONTENTS
(continued)
Page
Section 6.2. Ranking ............................................................ 18
Article VII TERMINATION ................................................................ 18
Section 7.1. Termination ........................................................ 18
Article VIII INDEMNIFICATION ............................................................ 19
Section 8.1. Exculpation ........................................................ 19
Section 8.2. Indemnification .................................................... 19
Article IX MISCELLANEOUS .............................................................. 20
Section 9.1. Successors and Assigns ............................................. 20
Section 9.2. Amendments ......................................................... 20
Section 9.3. Notices ............................................................ 20
Section 9.4. Benefit ............................................................ 21
Section 9.5. Governing Law ...................................................... 21
Section 9.6. Counterparts ....................................................... 21
ii
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of
________, 2002, is executed and delivered by New York Community Bancorp, Inc., a
Delaware corporation (the "Guarantor"), and Wilmington Trust Company, as trustee
(the "Guarantee Trustee"), for the benefit of the Holders (as defined herein)
from time to time of the Securities (as defined herein) of New York Community
Capital Trust V, a Delaware statutory trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of __________, 2002, among the Guarantor, as
Sponsor, Joseph R. Ficalora, Robert Wann and Thomas R. Cangemi, as the initial
Administrative Trustees, Wilmington Trust Company, as the initial Property
Trustee, and Wilmington Trust Company, as the initial Delaware Trustee, the
Issuer is issuing on the date hereof 5,500,000 preferred securities, stated
liquidation amount of $50 per preferred security, having an aggregate stated
liquidation amount of $275,000,000, such preferred securities being designated
the Preferred Securities (the "Preferred Securities") and 170,104 common
securities, stated liquidation amount of $50 per common security, having an
aggregate stated liquidation amount of $8,505,200, such common securities being
designated the Common Securities (the "Common Securities" and, together with the
Preferred Securities, the "Securities"); and
WHEREAS, as incentive for the Holders to purchase the Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Guarantee, to pay in full to the Holders the Guarantee
Payments (as defined below) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder,
which purchase the Guarantor hereby acknowledges shall benefit the Guarantor,
the Guarantor executes and delivers this Guarantee for the benefit of the
Holders.
Article I
DEFINITIONS AND INTERPRETATION
Section 1.1. Interpretation
In this Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee but not defined in
the preamble above have the respective meanings assigned to them in
Section 1.2;
(b) terms defined in the Declaration as at the date of execution
of this Guarantee have the same meaning when used in this Guarantee
unless otherwise defined in this Guarantee;
(c) a term defined anywhere in this Guarantee has the same
meaning throughout;
(d) all references to "this Guarantee" are to this Guarantee as
modified, supplemented or amended from time to time;
(e) all references in this Guarantee to Articles and Sections are
to Articles and Sections of this Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee, unless otherwise defined in this
Guarantee or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice
versa.
Section 1.2. Definitions
The following terms have the following meanings:
"Accreted Value" has the meaning set forth in the Declaration.
"Affiliate" has the same meaning as given to that term in Rule
405 under the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Business Day" has the meaning set forth in the Declaration.
"Change of Control Repurchase Price" has the meaning set forth in
the Declaration.
"Common Securities" has the meaning set forth in the Recitals
hereto.
"Corporate Trust Office" means the office of the Guarantee
Trustee at which the corporate trust business of the Guarantee Trustee shall, at
any particular time, be principally administered, which office at the date of
execution of this Agreement is located at Rodney Square North, 1100 North Market
Street, Rodney Square North, Wilmington, Delaware 19890.
"Covered Person" means any Holder or beneficial owner of
Securities.
"Debenture Issuer" has the meaning set forth in the Declaration.
"Debentures" means the series of subordinated debt securities of
the Guarantor designated the 6.000% Junior Subordinated Deferrable Interest
Debentures due 2051 to be purchased by the Issuer and held by the Property
Trustee.
"Declaration" has the meaning set forth in the Recitals hereto.
"Event of Default" means a failure by the Guarantor to perform
any of its payment or other obligations under this Guarantee.
"First Supplemental Indenture" means the First Supplemental
Indenture, dated as of __________, 2002, between the Debenture Issuer and the
Indenture Trustee,
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Securities, to the
extent not paid or made by the Issuer:
(i) any accrued and unpaid Distributions (as defined in the
Declaration) that are required to be paid on such Securities to the
extent the Issuer has funds legally available therefor;
2
(ii) the Redemption Price (as defined in the
Declaration) plus all accrued and unpaid Distributions, to the extent
the Issuer has funds legally available therefor, relating to any
Securities called for redemption by the Trust;
(iii) the Change of Control Repurchase Price (as defined
in the Declaration), with respect to the Preferred Securities of
Holders which exercised their right pursuant to Section 6.8 of the
Declaration to require the Trust to exchange their Preferred Securities
for Debentures and require the Debenture Issuer to repurchase the
Debentures which they have received in exchange for their Preferred
Securities, to the extent the Issuer has funds legally available
therefor; and
(iv) upon a voluntary or involuntary dissolution,
winding-up, termination and liquidation of the Issuer (other than in
connection with the distribution of Debentures to the Holders in
exchange for Securities as provided in the Declaration or the
redemption of all of the Securities), the lesser of:
(a) the aggregate Accreted Value of the Securities plus all
accrued and unpaid Distributions on the Securities to the date of
payment; and
(b) the amount of assets of the Issuer remaining available
for distribution to Holders in liquidation of the Issuer.
"Guarantee Trustee" means Wilmington Trust Company until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee and thereafter means each such Successor
Guarantee Trustee.
"Guarantor" has the meaning set forth in the Recitals hereto.
"Holder" has the meaning given such term in the Declaration.
"Indemnified Person" means the Guarantee Trustee, any
Affiliate of the Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or agents of
the Guarantee Trustee.
"Indenture" means the Indenture, dated as of _____________,
2002, between the Guarantor, as Debenture Issuer, and the Indenture Trustee, as
trustee, as amended or supplemented from time to time, 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 any event specified in
Section 2.10 of the First Supplemental Indenture.
"Indenture Trustee" has the meaning set forth in the
Declaration.
"Issuer" has the meaning set forth in the Recitals hereto.
"Majority in Liquidation Amount" means, except as provided by
the Trust Indenture Act, Holders of outstanding Securities, voting together as a
single class, or, as the context may require, the Holders of outstanding
Preferred Securities or the Holders of outstanding
3
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 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.
"Officers' Certificate" means, with respect to any person, 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. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Guarantee, other than pursuant to
Section 314(a)(4) of the Trust Indenture Act, shall include:
(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.
"Other Debentures" means all junior subordinated debentures
issued by the Guarantor from time to time and sold to any other trust,
partnership or other entity affiliated with the Guarantor that is a financing
vehicle of the Guarantor, if any, in each case similar to the Issuer.
"Other Guarantees" means all guarantees to be issued by the
Guarantor with respect to capital securities, if any, similar to the Securities
issued by any other trust, partnership or other entity affiliated with the
Guarantor that is a financing vehicle of the Guarantor, if any, in each case
similar to the Issuer.
"Person" has the meaning set forth in the Declaration.
"Preferred Securities" has the meaning set forth in the
Recitals hereto.
"Property Trustee" has the meaning set forth in the
Declaration.
"Pro Rata" has the meaning set forth in the Declaration.
"Redemption Price" has the meaning set forth in the
Declaration.
"Repurchase Price" has the meaning set forth in the
Declaration.
4
"Responsible Officer" means, with respect to the Guarantee
Trustee, any officer within the Corporate Trust Office of the Guarantee Trustee
who shall have direct responsibility for the administration of this Guarantee
and also means, with respect to a particular corporate trust matter, any other
officer within the Corporate Trust Office of the Guarantee Trustee to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Securities" has the meaning set forth in the Recitals hereto.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Enforcement Event" has the meaning given such term in the
Declaration.
"Trust Indenture Act" means the Trust Indenture Act of 1939, or
any successor legislation, in each case, as amended.
"Unit" has the meaning set forth in the Declaration.
Article II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act, Application
(a) This Guarantee is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee and shall be
governed, to the extent applicable, by such provisions; and
(b) if and to the extent that any provision of this Guarantee
limits, qualifies or conflicts with the duties imposed by Section 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 2.2. Lists of Holders of Securities
(a) The Guarantor shall provide the Guarantee Trustee (unless the
Guarantee Trustee is otherwise the registrar of the Securities) with a list, in
such form as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders"):
(i) as of the record date relating to the payment of any
Guarantee Payment, at least one Business Day prior to the date for
payment of such Guarantee Payment, 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
Guarantor of a written request from the Guarantee Trustee for a List of
Holders as of a date no more than fifteen days before such List of
Holders is given to the Guarantee Trustee.
If at any time the List of Holders does not differ from the most recent List of
Holders provided to the Guarantee Trustee by the Guarantor, the Guarantor shall
not be obligated to provide such List
5
of Holders. The Guarantee Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of Holders given to
it; provided that the Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under,
and shall be entitled to the benefits of, Sections 311(a), 311(b) and Section
312(b) of the Trust Indenture Act.
Section 2.3. Reports by the Guarantee Trustee
Within 60 days after May 15 of each year (commencing with the
first anniversary of the issuance of the Preferred Securities), the Guarantee
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 Guarantee
Trustee shall also comply with the other requirements of Section 313 of the
Trust Indenture Act.
Section 2.4. Periodic Reports to the Guarantee Trustee
The Guarantor shall provide to the Guarantee 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
The Guarantor shall provide to the Guarantee Trustee annually such
evidence of compliance with any conditions precedent provided for in this
Guarantee that relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by 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. Events of Default; Waiver
Except as set forth in the Declaration and the Indenture, the
Holders of a Majority in Liquidation Amount of the Securities may waive, by vote
or written consent, on behalf of all Holders, any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising there from shall be deemed to have been cured,
for every purpose of this Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
Section 2.7. Event of Default; Notice
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default actually known to a Responsible Officer,
transmit by mail, first class postage prepaid, to all Holders, notice of such
Event of Default, unless such Event of Default has been cured before the giving
of such notice; provided that except for a default in the payment of any
Guarantee Payment, the Guarantee Trustee shall be protected in withholding such
notice if and so
6
long as a Responsible Officer in good faith determines that the withholding of
such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless the Guarantee Trustee shall have received written
notice from the Guarantor, or a Responsible Officer charged with the
administration of the Declaration shall have obtained actual knowledge, of such
Event of Default.
Section 2.8. Conflicting Interests
The Declaration and the Indenture shall be deemed to be
specifically described in this Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
Section 2.9. Disclosure of Information
The disclosure of information as to the names and addresses of the
Holders of the Securities in accordance with Section 312 of the Trust Indenture
Act, regardless of the source from which such information was derived, shall not
be deemed to be a violation of any existing law, or any law hereafter enacted
which does not specifically refer to Section 312 of the Trust Indenture Act, nor
shall the Guarantee Trustee be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the Trust Indenture
Act.
Section 2.10. Guarantee Trustee May File Proofs of Claim
Upon the occurrence of an Event of Default, the Guarantee Trustee
is hereby authorized, but shall not be obligated, to:
(a) recover judgment, in its own name and as trustee of an express
trust, against the Guarantor for the whole amount of any Guarantee
Payments remaining unpaid; and
(b) file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have its claims and those of the
Holders allowed in any judicial proceedings relative to the Guarantor,
its creditors or its property.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee
(a) This Guarantee shall be held by the Guarantee Trustee for the
benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee to any Person except a Holder exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee of its appointment to act as Successor Guarantee
Trustee pursuant to Section 4.2. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, and such
vesting and succession of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the appointment of such
Successor Guarantee Trustee.
7
(b) If an Event of Default actually known to a Responsible Officer
has occurred and is continuing, the Guarantee Trustee shall enforce this
Guarantee for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the cure or waiver of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Guarantee, and no implied covenants shall be read into this
Guarantee against the Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer, the Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Guarantee, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Guarantee shall be construed to relieve
the Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Guarantee, and the Guarantee Trustee shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this Guarantee, and no implied covenants
or obligations shall be read into this Guarantee against the
Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Guarantee Trustee and conforming on their face to the
requirements of this Guarantee; 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 Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine
the same only to determine whether or not on their face they
conform to the requirements of this Guarantee;
(ii) the Guarantee 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 Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee 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 a
Majority in Liquidation Amount of the Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee in respect of this Guarantee, or exercising
any trust or power conferred upon the Guarantee Trustee under this
Guarantee; and
8
(iv) no provision of this Guarantee shall require the
Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers.
Section 3.2. Certain Rights of Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) the Guarantee Trustee may conclusively rely, and shall
be fully protected in acting or refraining from acting, upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by
this Guarantee may be sufficiently evidenced by an Officers'
Certificate;
(iii) whenever, in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may request and, in the absence of bad
faith on its part, conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor;
(iv) the Guarantee Trustee shall have no duty to record,
file or register any instrument (including any financing or
continuation statement or any filing under tax or securities
laws) or any duty to rerecord, refile or reregister such
instrument;
(v) the Guarantee Trustee may consult with counsel or
other experts of its selection, and the advice or opinion of such
counsel 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 Guarantor or any of its Affiliates and may include
any of its employees. The Guarantee Trustee shall have the right
at any time to seek instructions concerning the administration of
this Guarantee from any court of competent jurisdiction;
(vi) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Guarantee at the request or direction of any Holder, unless such
Holder shall have provided to the Guarantee Trustee such security
and indemnity, reasonably satisfactory to the Guarantee Trustee,
against the costs, expenses (including reasonable attorneys' fees
and expenses and the expenses of the Guarantee 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 Guarantee Trustee;
provided that nothing contained in this Section 3.2(a)(vi) shall
be taken to relieve the Guarantee Trustee, upon the occurrence of
an Event of Default, of its obligation to exercise the rights and
powers vested in it by this Guarantee;
9
(vii) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see
fit;
(viii) the Guarantee 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 Guarantee 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 Guarantee Trustee or its
agents hereunder shall bind the Holders, and the signature of the
Guarantee 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 Guarantee Trustee
to so act or as to its compliance with any of the terms and
provisions of this Guarantee, both of which shall be conclusively
evidenced by the Guarantee Trustee's or its agent's taking such
action;
(x) whenever in the administration of this Guarantee the
Guarantee Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee:
(A) may request instructions from the Holders of a
Majority in Liquidation Amount of the Preferred Securities;
(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; and
(xi) the Guarantee Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good
faith, without negligence, and reasonably believed by it to be
authorized or within the discretion, rights or powers conferred
upon it by this Guarantee.
(b) No provision of this Guarantee shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty.
Section 3.3. Not Responsible for Recitals or Issuance of
Guarantee
The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representation as to the validity or sufficiency of this Guarantee.
10
ARTICLE IV
GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee: Eligibility
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a 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 Securities and Exchange 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 4.1(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 Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Guarantee Trustee shall immediately
resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in all respects comply
with the provisions of Section 310(b) of the Trust Indenture Act.
Section 4.2. Appointment, Removal and Resignation of Guarantee
Trustee
(a) Subject to Section 4.2(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor except during an
Event of Default. Subject to the provisions of this Section 4.2, if an Event of
Default shall have occurred and be continuing, the Guarantee Trustee may be
appointed or removed by the Holders of a Majority in Liquidation Amount.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee shall hold office until a Successor
Guarantee Trustee shall have been appointed or until its removal or resignation.
The Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by a written instrument executed by the Guarantee Trustee
and delivered to the Guarantor, which resignation shall not take effect until a
Successor Guarantee Trustee has been appointed and has accepted such
11
appointment by instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2 within 30 days after
delivery of an instrument of removal or resignation, the Guarantee Trustee
resigning or being removed may at the expense of the Guarantor petition any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions
to act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation
of the Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay
to the Guarantee Trustee all amounts due to the Guarantee Trustee accrued to the
date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
Section 5.1. Guarantee
To the extent set forth in this Guarantee, the Guarantor
irrevocably and unconditionally agrees to pay in full to all Holders the
Guarantee Payments (without duplication of amounts theretofore paid by the
Issuer) on a Pro Rata basis, as and when due, regardless of any defense, right
of set-off or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders. If a Trust Enforcement Event has occurred and is
continuing, the rights of the Holders of the Common Securities to receive
Guarantee Payments shall be subordinated to the rights of the Holders of
Preferred Securities to receive Guarantee Payments. Notwithstanding anything to
the contrary herein, the Guarantor, in its capacity as Debenture Issuer, retains
all of its rights under the Indenture to:
(i) extend the interest payment period on the Debentures
and the Guarantor shall not be obligated hereunder to make any
Guarantee Payments during any Extension Period (as defined in the
Indenture) with respect to the Distributions on the Securities; and
(ii) change the maturity date of the Debentures to the
extent permitted by the Indenture.
Section 5.2. Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this
Guarantee and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor,
12
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
Section 5.3. Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Securities to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
a portion of the Distributions, Redemption Price or any other sums
payable under the terms of the Securities or the extension of time for
the performance of any other obligation under, arising out of, or in
connection with, the Securities (other than an extension of time for
payment of Distributions, Redemption Price or other sum payable that
results from the extension of any interest payment period on the
Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the
Securities, or any action on the part of the Issuer granting indulgence
or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Securities;
(f) the settlement or compromise of any obligation guaranteed or
incurred in this Guarantee; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of the Guarantor,
it being the intent of this Section 5.3 that the obligations of the
Guarantor with respect to the Guarantee Payments shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
No setoff, counterclaim, reduction or diminution of any
obligation, or any defense of any kind or nature that the Guarantor has or may
have against any Holder (except the defense of payment to such Holder) shall be
available hereunder to the Guarantor against such Holder to reduce the payments
to it under this Guarantee.
13
Section 5.4. Rights of Holders
(a) The Holders of a Majority in Liquidation Amount of the
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of this
Guarantee or exercising any trust or power conferred upon the Guarantee Trustee
under this Guarantee.
(b) If the Guarantee Trustee fails to enforce this Guarantee,
subject to the subordination provisions of Section 6.2, any Holder may institute
a legal proceeding directly against the Guarantor to enforce the Guarantee
Trustee's rights under this Guarantee, without first instituting a legal
proceeding against the Issuer, the Guarantee Trustee or any other person or
entity. In addition, if the Guarantor has failed to make a Guarantee Payment, a
Holder, subject to the subordination provisions of Section 6.2, may institute a
legal proceeding directly against the Guarantor for enforcement of the Guarantee
for payment to such Holder of the principal of or interest on the Debentures
having a principal amount equal to the aggregate liquidation amount of the
Securities of such Holder. The Guarantor waives any right or remedy to require
that any action be brought first against the Issuer or any other Person before
proceeding directly against the Guarantor.
Section 5.5. Guarantee of Payment
This Guarantee creates a guarantee of payment and not of
collection.
Section 5.6. Subrogation
The Guarantor shall be subrogated to all, if any, rights of the
Holders against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Guarantee; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law) be entitled to
enforce or exercise any right that it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Guarantee Trustee for
the benefit of the Holders.
Section 5.7. Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee notwithstanding the
occurrence of any event referred to in subsections (a) through (g), inclusive,
of Section 5.3 hereof.
14
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1. Limitation of Transactions
So long as any Securities remain outstanding, if an Event of
Default occurs under the Guarantee or a Trust Enforcement Event occurs under the
Declaration and written notice of such event has been given to the Guarantor, or
if the Guarantor has exercised its option under the Indenture to defer interest
payments and that period or extension of that period is continuing, the
Guarantor shall not:
(a) declare or pay any dividend on, make any distributions
relating to, or redeem, purchase, acquire or make a liquidation payment
relating to, any of the Guarantor's capital stock or any warrants,
options or other rights to acquire capital stock (but excluding any debt
security that is convertible into or exchangeable for capital stock);
(b) make any payment of interest, principal or premium, if any, on
or repay, repurchase or redeem any debt securities of the Guarantor
(including any Other Debentures) that rank on a parity with or junior in
interest to the Debentures or make any payments with respect to any
guarantee by the Guarantor of the debt securities of any subsidiary of
the Guarantor (including Other Guarantees) if such guarantee ranks on a
parity with or junior in interest to the Debentures
in each case, other than:
(i) dividends or distributions in capital stock (or rights
to acquire capital stock) of the Guarantor;
(ii) payments under this Guarantee;
(iii) any declaration of a dividend in connection with the
implementation of a shareholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any
such rights pursuant to a rights agreement;
(iv) repurchases or acquisitions of shares of capital stock
of the Guarantor in connection with the satisfaction by the Guarantor of
its obligations under any employee benefit plans or any other contractual
obligation of the Guarantor; or
(v) as a result of an exchange or conversion of the
Guarantor's capital stock for another class or series of the Guarantor's
capital stock;
(vi) the purchase of fractional interests in shares of the
Guarantor's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged; and
(vii) repurchases of capital stock of the Guarantor in
connection with the satisfaction by the Guarantor of its obligations
pursuant to any acquisitions of
15
businesses made by the Guarantor (which repurchases are made in
connection with the satisfaction of indemnification obligations of the
sellers of such businesses).
Section 6.2. Ranking
This Guarantee will constitute an unsecured obligation of the
Guarantor and will rank:
(i) subordinate and junior in right of payment to Senior
Indebtedness (as defined in the First Supplemental Indenture), to the
same extent and in the same manner that the Debentures are subordinated
to Senior Indebtedness pursuant to the Indenture, it being understood
that the terms of Article 6 of the First Supplemental Indenture shall
apply to the obligations of the Guarantor under this Guarantee as if
(x) such Article 6 were set forth herein in full and (y) such
obligations were substituted for the term "Debentures" appearing in
such Article 6, except that with respect to Section 6 of the First
Supplemental Indenture only, the term "Senior Indebtedness" shall mean
all liabilities of the Guarantor, whether or not for money borrowed
(other than obligations in respect of Other Guarantees);
(ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor, any
guarantee now or hereafter entered into by the Guarantor in respect of
any preferred or preference stock of any Affiliate of the Guarantor,
and any Other Guarantee; and
(iii) senior to the Guarantor's capital stock.
ARTICLE VII
TERMINATION
Section 7.1. Termination
This Guarantee shall terminate upon:
(i) full payment of the Redemption Price of all
Securities;
(ii) distribution of the Debentures held by the Issuer to
the Holders; or
(iii) liquidation of the Issuer and the full payment of the
amounts payable in accordance with the Declaration or the distribution
of the Debentures to the Holders.
Notwithstanding the foregoing, this Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any Holder must restore
payment of any sums paid under the Securities or under this Guarantee.
16
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor 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 in accordance with this
Guarantee and in a manner that such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Guarantee or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by a Holder by reason of such Indemnified
Person's 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 Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and, if selected by the 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.
Section 8.2. Indemnification
To the fullest extent permitted by law, the Guarantor agrees
to indemnify each Indemnified Person for, and to hold each Indemnified Person
harmless against, any and all loss, liability, damage, claim or expense incurred
without negligence or bad faith on its part, 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 itself against, or investigating, any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 8.2 shall
survive the termination of this Guarantee and shall survive the removal or
resignation of the Guarantee Trustee.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Successors and Assigns
All guarantees and agreements contained in this Guarantee
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders then outstanding.
Section 9.2. Amendments
Except with respect to any changes that do not materially
adversely affect the rights of Holders (in which case no consent of Holders will
be required), this Guarantee may only
17
be amended with the prior approval of the Holders of a Majority in Liquidation
Amount of the Securities. The provisions of the Declaration with respect to
consents to amendments thereof, whether at a meeting or otherwise, shall apply
to the giving of such approval.
Section 9.3. Notices
All notices provided for in this Guarantee shall be in
writing, duly signed by the party giving such notice, and shall be delivered by
hand or express courier, telecopied or mailed by first class mail, as follows:
(a) If given to the Issuer, at the Issuer's mailing address
set forth below (or such other address as the Issuer may give notice of
to the Holders and the Guarantee Trustee):
New York Community Capital Trust V
c/o New York Community Bancorp, Inc.
615 Merrick Avenue
Westbury, New York 11590
Attention: Joseph R. Ficalora, Administrative Trustee, c/o
Chief Executive Officer
Telecopy: (516) 683-4100
(b) If given to the Guarantee Trustee, at the Guarantee
Trustee's mailing address set forth below (or such other address as the
Guarantee Trustee may give notice of to the Holders and the Issuer):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Telecopy: (302) 636-4140
(c) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may
give notice of to the Holders and the Guarantee Trustee):
New York Community Bancorp, Inc.
615 Merrick Avenue
Westbury, New York 11590
Attention: Chief Executive Officer
Telecopy: (516) 683-4100
(d) If given to any Holder, at such Holder's address set forth
on the books and records of the Issuer.
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
18
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 9.4. Benefit
This Guarantee is solely for the benefit of the Holders and,
subject to Section 3.1(a), is not separately transferable from the Securities.
Section 9.5. Governing Law
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 9.6. Counterparts
This Guarantee may contain more than one counterpart of the
signature page, and this Guarantee may be executed by affixing of the signature
of each of the parties to one of such counterpart signature pages. All 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.
19
IN WITNESS WHEREOF, this Guarantee Agreement has been entered
into as of the day and year first above written.
NEW YORK COMMUNITY BANCORP, INC., AS
GUARANTOR
By: ____________________________________
Name:
Title:
WILMINGTON TRUST COMPANY, AS
GUARANTEE TRUSTEE
By: _____________________________________
Name:
Title: