Exhibit 5(b)(iii)
[LETTERHEAD OF MORRIS, JAMES, HITCHENS & WILLIAMS LLP]
April 19, 2002
New York Community Capital Trust III
c/o New York Community Bancorp, Inc.
615 Merrick Avenue
Westbury, New York 11590
Re: New York Community Capital Trust III
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Ladies and Gentlemen:
We have acted as special Delaware counsel for New York Community Bancorp,
Inc., (the "Company"), and for New York Community Capital Trust III, a Delaware
business trust (the "Trust"), for purposes of giving the opinions set forth
herein. This opinion letter is being furnished to you at your request.
For purposes of giving the opinions set forth below, our examination of
documents has been limited to the examination of originals or copies furnished
to us of the following:
(a) The Declaration of Trust of the Trust, dated as of April 18, 2002,
between the Company and the trustees of the Trust named therein;
(b) The Certificate of Trust of the Trust, as filed in the office of the
Secretary of State of the State of Delaware (the "Secretary of State") on April
18, 2002 (the "Certificate");
(c) A Registration Statement (the "Registration Statement") on Form S-3
to be filed with the Securities and Exchange Commission on or about April 19,
2002, including a prospectus, relating to the _____% Preferred Securities
(Liquidation Amount $_______ per
New York Community Capital Trust III
April 19, 2002
Page 2
Preferred Security) of the Trust, representing undivided preferred beneficial
interests in the assets of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities");
(d) A form of Amended and Restated Declaration of Trust of the Trust
(including Annex I and Exhibits A-1 and A-2 attached thereto) attached as an
exhibit to the Registration Statement (the "Declaration"); and
(e) A Certificate of Good Standing for the Trust, dated a recent date,
obtained from the Secretary of State.
Unless otherwise defined herein, all capitalized terms used in this
opinion letter shall have the respective meanings provided in the Declaration,
except that reference herein to any document shall mean such document as in
effect on the date hereof.
For the purposes of this opinion letter, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that
bears upon or is inconsistent with or contrary to the opinions stated herein. We
have conducted no factual investigation of our own but rather have relied solely
upon the foregoing documents, the statements and information set forth therein
and the additional matters recited or assumed herein, all of which we have
assumed to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion letter, we have assumed (i) that the
Declaration will constitute the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation, and termination of the Trust, and that the Declaration and the
Certificate will be in full force and effect and will not be amended, (ii)
except to the extent provided in paragraph 1 below, the due creation, due
formation or due organization, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, formation or organization, (iii) the legal
capacity of each natural person who is a party or signatory to the documents
examined by us, (iv) that each of the parties and signatories to the documents
New York Community Capital Trust III
April 19, 2002
Page 3
examined by us has all requisite power and authority to execute and deliver, and
to perform its obligations under, such documents, (v) that each of the parties
and signatories to the documents examined by us has duly authorized, executed
and delivered such documents, (vi) the receipt by each Person to whom a
Preferred Security is to be issued by the Trust (the "Preferred Security
Holders") of an appropriate certificate for such Preferred Security and the
payment for each Preferred Security acquired by it, all in accordance with the
Declaration and the Registration Statement, and (vii) that the Preferred
Securities are issued to the Preferred Security Holders in accordance with the
Declaration and the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
The opinions in this letter are limited to the laws of the State of
Delaware (other than the securities laws of the State of Delaware) and we have
not considered and express no opinion on the effect of or concerning matters
involving the laws of any other jurisdiction, or rules, regulations, orders and
decisions relating to such laws, including, without limitation, the federal laws
of the United States of America.
Based upon the foregoing, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly formed and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del.
---
C.(S)(S) 3801, et seq.
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2. The Preferred Securities have been duly authorized by the Trust
pursuant to the Declaration and will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments and provide indemnity and/or security
as set forth in the Declaration.
We consent to the filing of this opinion letter with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In giving the
foregoing consent, we do not thereby admit that we come within the category of
Persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the rules and regulations of the Securities and Exchange
Commission thereunder. Except as stated above, without our prior written
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April 19, 2002
Page 4
consent, this opinion letter may not be furnished or quoted to, or relied upon
by, any other Person or relied upon for any other purpose.
Very truly yours,
/s/ MORRIS, JAMES, HITCHENS & WILLIAMS LLP
RLS/fg