Exhibit 4(g)(ii)
DECLARATION OF TRUST
OF
NEW YORK COMMUNITY CAPITAL TRUST II
THIS DECLARATION OF TRUST is made as of April 18, 2002 (this
"Declaration"), by and among New York Community Bancorp, Inc., a Delaware
corporation, as sponsor (the "Sponsor"), Wilmington Trust Company, a Delaware
banking corporation, as Delaware trustee (the "Delaware Trustee"), and Joseph R.
Ficalora, Robert Wann and Thomas R. Cangemi, each as administrative trustee
(collectively, the "Administrative Trustees"). The Delaware Trustee and the
Administrative Trustees are referred to herein collectively as the "Trustees"
and each individually as a "Trustee." The Sponsor and the Trustees hereby agree
as follows:
i. The trust created hereby shall be known as "New York Community Capital
Trust II" (the "Trust"), in which name the Trustees or the Sponsor, to
the extent provided herein, may conduct the business of the Trust,
make and execute contracts, and sue and be sued.
ii. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Sponsor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold
the trust estate in trust for the Sponsor. It is the intention of the
parties hereto that the Trust created hereby constitute a business
trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del.
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C. (S)3801, et seq. (the "Business Trust Act"), and that this
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Declaration constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Secretary of State of the State of
Delaware in the form attached to this Declaration.
iii. The Sponsor and the Trustees will enter into an amended and restated
Declaration of Trust satisfactory to each such party to provide for
the contemplated operation of the Trust created hereby and the
issuance by the Trust of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of
such amended and restated Declaration of Trust (i) a Trustee shall not
have any duty or obligation hereunder or with respect to the trust
estate, except as otherwise required by applicable law, and (ii) the
Sponsor shall take or cause to be taken any action as may be necessary
to obtain prior to such execution and delivery any licenses, consents
or approvals required by applicable law or otherwise. Notwithstanding
the foregoing, a Trustee may take all actions which the Sponsor deems
necessary, convenient or incidental to effect the transactions
contemplated herein. The Trustees shall not have any duty or
obligation under or in connection with this Declaration or any
document contemplated hereby, except as expressly provided by the
terms of this Declaration, and no implied duties or obligations shall
be read into this Declaration against the Trustees. The right of a
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Trustee to perform any discretionary act enumerated herein shall not
be construed as a duty.
iv. The Sponsor hereby agrees to (i) reimburse the Delaware Trustee for
all reasonable expenses (including reasonable fees and expenses of
counsel and other experts), (ii) indemnify, defend and hold harmless
the Delaware Trustee and the officers, directors, employees and agents
of the Delaware Trustee (collectively, including the Delaware Trustee
in its individual capacity, the "Indemnified Persons") from and
against any and all losses, damages, liabilities, claims, actions,
suits, costs, expenses, disbursements (including the reasonable fees
and expenses of counsel), taxes and penalties of any kind and nature
whatsoever (collectively, "Expenses"), to the extent that such
Expenses arise out of or are imposed upon or asserted at any time
against such Indemnified Persons with respect to the performance of
this Declaration, the creation, operation, administration or
termination of the Trust, or the transactions contemplated hereby;
provided, however, that the Sponsor shall not be required to indemnify
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an Indemnified Person for Expenses to the extent such Expenses result
from the willful misconduct, bad faith or negligence of such
Indemnified Person, and (iii) advance to each such Indemnified Person
Expenses (including reasonable fees and expenses of counsel) incurred
by such Indemnified Person, in defending any claim, demand, action,
suit or proceeding 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 Indemnified Person, to repay such
amount if it shall be determined that such Indemnified Person is not
entitled to be indemnified therefor under this Section 4. The
obligations of the Sponsor under this Section 4 shall survive the
resignation or removal of the Delaware Trustee.
v. The Sponsor, as sponsor of the Trust, is hereby authorized, in its
discretion, (i) to prepare and distribute one or more offering
memoranda in preliminary and final form, including any necessary or
desirable amendments, relating to the offering and sale of Preferred
Securities of the Trust in a transaction exempt from the registration
requirements of the Securities Act of 1933, as amended (the "1933
Act"), and such forms or filings as may be required by the 1933 Act,
the Securities Exchange Act of 1934, as amended, or the Trust
Indenture Act of 1939, as amended, in each case relating to the
Preferred Securities of the Trust; (ii) to prepare, execute and file
on behalf of the Trust, such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process
and other papers and documents that shall be necessary or desirable to
register or establish the exemption from registration of the Preferred
Securities of the Trust under the securities or "Blue Sky" laws of
such jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable; (iii) to prepare, execute and file an
application, and all other applications, statements, certificates,
agreements and other instruments that shall be necessary or desirable,
to have the Preferred
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Securities listed on the Private Offerings, Resales and Trading
through Automated Linkages ("PORTAL") Market and, if and at such time
as determined by the Depositor, with the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing or quotation of the Preferred Securities of the Trust; (iv) to
prepare, execute and deliver letters or documents to, or instruments
for filing with, a depository relating to the Preferred Securities of
the Trust; (v) to negotiate, execute, deliver and perform on behalf of
the Trust one or more dealer/manager agreements, escrow agreements,
subscription agreements and other similar or related agreements
providing for or relating to the sale and issuance of the Preferred
Securities of the Trust and/or any other interests in the Trust; and
(vi) to prepare, execute and deliver on behalf of the Trust any and
all documents, certificates, papers, instruments and other writings as
it deems desirable in connection with any of the foregoing.
In the event that any filing referred to in this Section 5 is required
by the rules and regulations of Securities and Exchange Commission
(the "Commission"), PORTAL or state securities or Blue Sky laws to be
executed on behalf of the Trust by a trustee, the Delaware Trustee, in
its capacity as a trustee of the Trust, so required to execute such
filings is hereby authorized and directed to join in any such filing
and to execute on behalf of the Trust any and all of the foregoing, it
being understood that any Trustee, in its capacity as a trustee of the
Trust, shall not be required to join in any such filing or execute on
behalf of the Trust any such document unless required to do so by the
rules and regulations of the Commission, PORTAL or applicable state
securities or Blue Sky laws.
vi. Each Trustee is authorized to take such action or refrain from taking
such action under this Declaration as it may be directed in writing by
the Sponsor from time to time; provided, however, that the Delaware
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Trustee shall not be required to take or refrain from taking any such
action if it shall have determined, or shall have been advised by
counsel, that such performance is likely to involve the Delaware
Trustee in personal liability or is contrary to the terms of this
Declaration or of any document contemplated hereby to which the Trust
or the Delaware Trustee is a party or is otherwise contrary to law. If
at any time the Delaware Trustee determines that it requires or
desires guidance regarding the application of any provision of this
Declaration or any other document, or regarding compliance with any
direction it received hereunder, then the Delaware Trustee may deliver
a notice to the Sponsor requesting written instructions as to the
course of action desired by the Sponsor, and such instructions shall
constitute full and complete authorization and protection for actions
taken and other performance by the Delaware Trustee in reliance
thereon. Until the Delaware Trustee has received such instructions
after delivering such notice, it may refrain from taking any action
with respect to the matters described in such notice.
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vii. The number of trustees of the Trust initially shall be two (2) and
thereafter the number of trustees of the Trust shall be such number as
shall be fixed from time to time by a written instrument signed by the
Sponsor which may increase or decrease the number of trustees of the
Trust; provided, however, to the extent required by the Business Trust
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Act, there shall at all times be one trustee of the Trust that shall
either be a natural person who is a resident of the State of Delaware
or, 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. Subject to the foregoing, the Sponsor
is entitled to appoint or remove without cause any trustee of the
Trust at any time. Any trustee of the Trust may resign upon thirty
days' prior notice to the Sponsor.
viii. This Declaration may be executed in one or more counterparts.
ix. This Declaration shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of
laws principles).
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
New York Community Bancorp, Inc.,
as Sponsor
By: /s/ Thomas R. Cangemi
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Name: Thomas R. Cangemi
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Title: EVP
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Wilmington Trust Company, as
Delaware Trustee
By: /s/ Donald G. MacKelcan
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Name: Donald G. MacKelcan
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Title: Vice President
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/s/ Joseph R. Ficalora
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Joseph R. Ficalora, as Administrative Trustee
/s/ Robert Wann
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Robert Wann, as Administrative Trustee
/s/ Thomas R. Cangemi
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Thomas R. Cangemi, as Administrative Trustee
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